Orginally Published in 65 Fordham L. Rev. 1703 (1997).
Copyright 1998 by Jack M. Balkin. All Rights Reserved.
II. Fidelity and the Levinsonian Wager
The problem of constitutional evil becomes even more obvious when we consider how constitutions come about. When we watch other countries form their constitutions, we are often struck by the many compromises they must make with prior regimes and the injustices of those regimes. Consider, for example, the problems of constitution making in Eastern Europe, South Africa or the former Yugoslavia. The production of these new constitutions requires distasteful compromises with previous evils and gerrymandered features designed to smooth the transition from the old regime to the new.(40)
Such constitutions are messy and untidy, so compromised that many of the drafters often wish they did not have to sign them. They are unsure whether signing is a great act of statesmanship or an even greater act of betrayal. Yet what we are witnessing is the normal case of constitutional politics. And looking at these new constitutions should remind us that everything we see in them is true of our own Constitution. Our own Constitution was also the result of an escape from a previous regime, a revolution with its own compromises and inadequacies. The States, big and small, North and South, had to be persuaded to join the Union; the interests and concerns of different property owners - including both mercantile interests and slave-holders - had to be assuaged. We might make a similar point about the compromises necessary to reorganize the Union and the Constitution after the Civil War. The injustices of the status quo are always continued in a new constitution even as it seeks to remedy some of them. All constitutions are agreements with hell.
Because of the imperfections of all constitutions, the question of constitutional fidelity necessarily becomes a question of constitutional faith.(41) And this is borne out in the etymology of the word itself. The word fidelity comes from the Latin “fides,” meaning trust or faith. Faith, in turn, is defined as a “confident belief in the truth, value, or trustworthiness of a person, an idea, or a thing.”(42) Thus, to have fidelity is to be faithful - literally, to be full of faith, full of confidence in the value of that which we are faithful to.
This etymology shows us the deep connections between fidelity and faith: To be faithful to someone or something is simultaneously to have faith in someone or something. Fidelity is a two-way street; it is a relationship between oneself and another. One is faithful to the other in part because one expects the other to be faithful to oneself.
Of course, one does not know that the other will be faithful, and often the other is not. Thus, faithfulness is also faith in the other’s fidelity. To be faithful is to be faithful even though one does not know whether the other will live up to the other’s obligations. Hence, to be faithful is to trust, to make a leap of faith. Conversely, to be faithless also has a double meaning. It means both to lack faith and to betray a trust. A faithless person both lacks trust and cannot be trusted; she is unreliable and disloyal. Indeed, she may become disloyal precisely because she no longer believes in the institution she once trusted, or because she is emotionally incapable of such trust.
There is an important connection between fidelity and the existential commitment of trust. Often when one loses faith in another, one no longer feels the obligation to be faithful to that person. Of course, this is not always the case. For example, if a person’s spouse is repeatedly unfaithful, one might still be faithful to him or her. But even in that case one still trusts in something - one believes that the sanctity of marriage is valuable, one trusts that marriages are worth preserving for the sake of some greater good, or perhaps one holds out the hope that the other will return from his or her erring ways. Thus, when one is faithful to another, one still has a commitment to something, even if it is no longer to a flesh-and-blood person but to an abstraction or a moral principle. Faithfulness always requires trust and belief in something, whether it is a person or an institution, a tradition or an ideal.
In the same way, to have fidelity to an institution, one must also believe in it. When one becomes part of an institution, one must make a leap of faith. One must believe that, on the whole, the institution is a good thing, and not a bad thing, and that to further its purposes is also, on the whole, a good thing, and not a bad thing. Even if particular actions one does on behalf of the institution are personally troubling, one must believe that, in the long run, hewing to one’s institutional role means that things will work out for the best. This is a very common notion among lawyers, who are often required to make arguments they do not believe and defend clients and causes they do not personally support. Sometimes lawyers think that their representation of clients is a good thing because they believe in their clients’ causes. They believe (or convince themselves) that the furtherance of their clients’ interest is also the furtherance of the public interest. But more often, they defend their actions on the grounds that the entire practice of legal representation is a basically just one, or more just than any feasible alternative. They make an argument about their role within a larger institutional framework. Role morality is based ultimately on a faith in the value of the institution that creates the role.(43)
If one’s role as a lawyer requires one to do a distasteful thing, one can still fall back on the justice of the general system of legal representation. But if one lacks faith in the institution, it becomes harder to justify one’s participation in specific conduct that one finds distasteful.
Sanford Levinson closes his book, Constitutional Faith, with the question whether one should sign the Constitution of the United States.(44) In particular Levinson asks whether one should have signed the Constitution of the United States in 1787, given its implicit protection of slavery and its omission of the Bill of Rights. He finds this question extremely difficult.(45) In the end, Levinson grudgingly admits that he would sign the document, because of a sense of faith that the country would live up to its promise of freedom. He argues that the language of the Constitution and the constitutional tradition is sufficiently flexible to allow amelioration over time, even if some of the necessary interpretations are currently unpersuasive.(46) Levinson’s constitutional faith, for all of its anxieties, is also an optimism - a belief that, despite recurrent adversities and failings, things will work out well in the end. Levinson’s gamble is that the story of the U.S. Constitution will ultimately turn out to be a comedy rather than a tragedy, or a story with no determinate end and no clear moral. In every comedy, the hero must encounter obstacles and overcome them, and so the existence of constitutional evil, even profound evil, does not shake our faith as long as we believe that such evils will eventually be eradicated. As the Psalmist says, “when the wicked spring up like grass, and all evil doers flourish, it is that they may be destroyed forever.”(47)
Levinson’s constitutional faith is offered in the face of the possibility and the reality of the Evil Constitution. Thus, we might think of it as a gamble on the future. In this sense, it might seem to resemble Pascal’s famous wager on the existence of God.(48) However, Pascal offered a mathematical proof to demonstrate the reasonableness of the wager, whereas Levinson can offer no such proof. In this sense Levinson’s wager is much more a matter of faith than Pascal’s.
Justice Story’s opinion in Prigg v. Pennsylvania also reflects a certain kind of wager. Story believed that by upholding the right of slave owners to regain their slaves he would preserve a greater good, the preservation of the Union and its Constitution.(49) Implicit in Story’s wager is the same assumption: faith that preserving the Union is a good thing, because at the end of the day, there will turn out to be no serious long-term conflict between the Constitution and social justice.
Story’s wager, though, is different from Levinson’s in an important respect. Story was at the time a sitting United States Supreme Court Justice. The vindication of his faith is much more in his hands than it could ever be in Levinson’s. And his practice of offering constitutional interpretations is also importantly different. A good argument about the meaning of the Constitution from Levinson and a good argument made by Story may look identical but they have very different effects: One is merely the musings of a law professor; the other represents one-fifth of the votes needed to change the meaning of the Constitution.(50)
I emphasize this point because we might think that one answer to the problem of constitutional evil is to take constitutional idealism seriously: By discussing and arguing about the Constitution among ourselves, legal academics can contribute to the constitutional tradition and change its trajectory. We can be the masters of our own constitutional destiny.(51)
This solution to the problem of constitutional evil is appealing because it envisions legal academics as having a significant effect on the Constitution. By writing about the importance of justice in constitutional interpretation, by engaging in an ongoing conversation with others about the meaning of the Constitution, they can actually make the Constitution more just. Yet this is a fool’s errand for most of the law professors who write and think daily about the Constitution. It is a confusion of their role with the role of the Supreme Court Justice.(52) Even if participating in arguments about the Constitution is a possible solution to the problem of constitutional faith for Justice Story, it is not a possible solution for the vast majority of American law professors, or, indeed, the vast majority of American citizens.
The articulation of constitutional ideals by different parties may look grammatically identical but its social meaning and social effect is quite different.(53) The construction of constitutional systems by the average law professor at the average American law school has only a minuscule effect on the direction of the Constitution’s meaning. For them, as for most Americans, constructing a Shadow Constitution is shadow boxing. It does not avoid the real problems of constitutional faith.
Justice Story’s faith in the Constitution is importantly different precisely because he is able to turn the Constitution to the path of what he regards as just. Of course, the very fact that Story was presented with a case like Prigg shows that even Supreme Court Justices have limited control over events that affect the Constitution’s meaning. And in any case, he does not act alone - he must convince four of his other colleagues. But these limitations on Justice Story simply support the larger point I wish to make: To have faith in the Constitution is to have faith in an ongoing set of institutions whose meaning the individual will not be able to control. Most of us participate only in the great mass of public opinion that eventually affects the meaning and direction of the Constitution; our views are like a drop of water in a great ocean. We cannot mold the object of our faith to our will; its eventual trajectory is largely out of our hands.
And what, then, if our constitutional faith is shaken? What if we come to believe that fidelity to the Constitution will not eventually achieve social justice, but that it will, on the contrary, preserve and even expand pervasive social injustices? It would be like discovering that the God we worshiped was not in fact good but was indifferent or even evil; that He did not care about us or about our well being and might be actively hostile to us. Should we have faith in such a God at that point? Should we even come to doubt His existence? It is no accident that one of the most difficult arguments put forward by atheists against the existence of God is the Argument from Evil. Explaining the existence of evil, and constructing theodicies, has been a constant task for generations of theologians.(54)
Of course, there is no question of not believing in the existence of the Constitution. But we might well doubt whether our Constitution deserves our fidelity, just as we might come to wonder whether the god we thought we were worshipping was actually a demon.
III. What Constitutional Faith Does to Us
But constitutional fidelity, I think, is more than simply a gamble on a horse that might not pay off. The practice of constitutional fidelity, like fidelity to other institutions, has important psychological effects on the self. To be faithful to an institution is to enter into a world, to accept a certain way of talking and a certain discipline of thought. It is to adopt a grammar that is not merely a vessel of thought and expression but subtly shapes and forms the processes of thought itself. At its best, fidelity is a virtue; at its worst it is a pathology.
Over time, the word “fidelity” has been extended from a description of a relationship between persons to a relationship between a thing and something else that corresponds to it. Hence, we speak of a faithful likeness or a faithful representation. But this way of talking disguises the existential element in interpretation. Fidelity is not simply a matter of correspondence between an idea and a text, or a set of correct procedures for interpretation. It is not simply a matter of proper translation or proper synthesis or even proper political philosophy. Fidelity is not a relationship between a thing and an interpretation of that thing. Fidelity is not about texts; it is about selves. Fidelity is an orientation of a self towards something else, a relationship which is mediated through and often disguised by talk of texts, translations, correspondences and political philosophy. Fidelity is an attitude that we have towards something we attempt to understand; it is a discipline of self that is related to the discipline of a larger set of selves in a society. Fidelity is ontological and existential; it shapes us, affects us, has power over us, ennobles us, enslaves us. Fidelity is a form of power exercised over the self by the self and by the social forces that help make the self what it is. As such, fidelity is an equivocal concept, full of both good and bad, mixed inextricably together. Fidelity is the home of commitment, sacrifice, self-identification and patriotism, as well as the home of legitimation, servitude, self-deception and idolatry.
If the Constitution is an evil thing, fidelity to that thing is dangerous. It is dangerous not simply because fidelity furthers the work of evil, but because of what fidelity does to the faithful. Fidelity is a sort of servitude, a servitude that we gladly enter into in order to understand the Constitution. To become the faithful servants of the Constitution, we must talk and think in terms of it; we must think constitutional thoughts, we must speak a constitutional language. The Constitution becomes the focus of our attention, the prism of our perspective. Our efforts are directed to understanding it - and many other things in society as well - in terms of its clauses, its concepts, its traditions. Through this discipline, this focus, we achieve a sort of tunnel vision: a closing off to other possibilities that would speak in a different language and think in a different way, a closing off to worlds in which the Constitution is only one document among many, worlds in which the Constitution is no great thing, but only a first draft of something much greater and more noble. And to think and talk, and focus our attention on the Constitution, to be faithful to it, and not to some other thing, we must bolt the doors, shut out the lights, block the entrances. Fidelity is servitude indeed. But this servitude is not so much something the Constitution does to us as something we do to ourselves in order to be faithful to it.
If we are the sort of people who see constitutional fidelity as an unquestioned virtue, who write articles and make arguments about whether such and such is a faithful interpretation of the Constitution, who accuse others of infidelity as if this were a serious sin, what does this say about what we are and what we have become? We need to consider what the acknowledgement of fidelity as a constitutional virtue presupposes, not about the nature of language or political philosophy, but about the nature of the self.
One sometimes doubts that lawyers and politicians take the language of fidelity seriously. Perhaps lawyers and politicians do not really believe in the Constitution; perhaps they are being faithful to something else. That is certainly what they constantly accuse each other of, even as they assert that their own interpretations are faithful. But someone in this rhetorical stew must actually think that he or she is being faithful. Not all of these people are opportunists, even if many of them are mistaken. Moreover, even opportunism has a price to pay in its effect on the self and the self’s commitments.
The rhetoric of legal and political argument alike is premised on the assumption of fidelity. For a judge to say that fidelity to the Constitution is not important is scandalous; rather she must say that she has a deeper fidelity than the superficial views of her opponents. For a politician to say that she is not faithful to the Constitution is treasonous; rather she must say that she has faith in the deeper political principles that underlie the document and remain even to this day its nourishing source and fountainhead. For a law professor to say that fidelity to the Constitution is unimportant is to admit that she is no longer doing constitutional law; rather, she must say that she is faithful to what the Constitution, properly understood, commands.
In each of these cases, people find it necessary rhetorically to phrase their arguments in terms of what is most faithful to the Constitution. Perhaps this rhetorical strategy is just that. Perhaps people say that they are being faithful to the Constitution without really believing it to be so. Perhaps they say that fidelity is an important good while secretly thinking it not very important at all. But I doubt that this accounts for most people in law, politics or the legal academy. Most of them hope that what they do is faithful to the Constitution. They want it to be so, they need it to be so, even if they sometimes have doubts whether it is so. And the question we must ask ourselves is, what is the meaning of, and the possible dangers in, that hope, that want and that need?
There are several reasons to be worried about the effects of constitutional fidelity on the self. First, fidelity to the Constitution requires us to speak and think in the language of the constitutional tradition and its characteristic concepts and categories. We must phrase our claims about what is just and unjust in terms of this constitutional discourse. And it is by no means clear that everything worth saying about justice and injustice can be said in this language. Some ways of thinking about human rights and self-government can be expressed only very awkwardly if at all in the language of our Constitution and its distinctive concepts and doctrinal glosses. We may well be unaware of how much the increasing formalisms, the gradual encrustations of constitutional language, hedge and limit our imaginations, obscure our understanding rather than illuminate it. We may be unaware of this precisely because these concepts and categories seem so natural to us as students of the Constitution - because we work with them daily so that they have become the familiar and regular tools of our constitutional understanding.
The language of the Constitution does not merely affect our understanding of it. Many of us are engaged in practices where reference to the Constitution is a standard method of discussing what is just and unjust. People who immerse themselves in the Constitution and its traditions often bring the concepts of that tradition to bear in their other moral and political judgments. In this way the tools of constitutional thinking infect our attitudes towards basic questions of social justice and political philosophy. We find that when we discuss these questions, we turn to the language of the Constitution as second nature. It is a language that warps and limits our imagination about justice. Yet it is a language we cling to because it has become the only way we know how to be just, like a neurotic who finds himself replaying a damaging script in all his relationships because it is the only way he knows how to love and be loved.
There are many examples of these boundaries on our imagination, which themselves could form the subject of another essay. But the one which weighs on my mind most heavily these days is the manner in which the concept of equal protection has been formalized into questions of fundamental right, suspect classification, substantial burden and tiers of scrutiny. These categories see inequality as a question of similarity and difference, view oppression as a question of individual animus, and measure discrimination by inquiries into discreteness, insularity and immutability. This formalism produces a doctrinal edifice worthy of a thirteenth century scholastic: It offers us a structure that is used to consider the legal treatment of both debt adjusters and homosexuals, tax abatements and Mexican-Americans. Not surprisingly, it forms a procrustean bed that fails to do justice to the sociology of groups and the construction of group identities in a culture. In the legal language of our Constitution, it is difficult to talk about caste and stigma without wrenching them from their sociological bases and restating them in five-part tests that manage utterly to miss the point of how status-based injustices are perpetrated and perpetuated. Perhaps with time our law can become more sociological. But for now the constitutional language of equality seems to be more a method of promoting social inequality, the constitutional language of rights seems to be more a means of inhibiting freedom, and the constitutional language of respect for democracy seems to be more a device for stifling the very possibility of self-governance for the vast majority of people in this country.
Moreover, even when ideas can be expressed in the existing constitutional grammar, some are clearly unpersuasive at any given point in time, given the political and professional consensus of opinion. If our discussions are honestly to be faithful interpretations of the Constitution, we must shut out these implausible claims and considerations; we must regard them as “off-the-wall” for purposes of the constitutional discourse of fidelity. That in itself would not be so bad, except that our commitment to fidelity has a further, and even more disturbing consequence.
To pledge fidelity to the Constitution is not only to think and talk in a certain way, it is also to believe something important about the American system of government. Our fidelity to the Constitution requires us to believe that it is a basically good and just document, and that it frames the legal system of a basically good and just polity. Of course there is no logical contradiction in believing at one and the same time that the Constitution is a basically good and just document but that it is the legal framework for a deeply unjust land. But there is an implicit cognitive dissonance here. There is enormous pressure to believe that the system ordained and established by the document we pledge fidelity to is itself worthy of respect. Indeed, these beliefs are mutually supporting, for it is likely that our patriotism is drummed into us at a much earlier age than our education in the intricacies of the Constitution. Our Constitution is the greatest charter of liberties ever devised by the hand of Man precisely because it is our Constitution, the Constitution of our country.
My point is not a logical one but a psychological one. Nor does it advert to the longstanding debate between natural law and positivism. Lots of people who are positivists, who believe that it is logically possible for law to be unjust nevertheless have a strong psychological stake in the basic justice of the American Constitution and the American system of government. It is surely philosophically possible for the Constitution to be deeply unjust, but the question I am interested is whether it is psychologically possible. Whether natural law advocates or positivists at heart, it is very hard for most Americans, and especially for most members of the American legal profession, to come to terms with and accept the possibility that the American Constitution might actually be profoundly unfair. They might concede that it has pockets of injustice, a few clauses and doctrines here and there that might need reform. Yet the idea that it is, as William Lloyd Garrison said, a “covenant with death, and an agreement with hell”(55)
is simply too difficult for most people to accept. If there are constitutional in justices in our society, they are on the order of mindless bureaucracy and rent control; they are not in the same league as slavery.
Of course, one might object that the reason for this lack of acceptance is that the claim of significant and pervasive constitutional evil is simply unbelievable. But the word unbelievable has two meanings: first that something is false, and the second that one is simply not able to believe it. The fact that many people do not see our system of government as having deep pockets of injustice cannot be a sufficient proof of their nonexistence, because many people felt the same way about American institutions before the Warren Court, before Brown v. Board of Education,(56) before the Nineteenth Amendment, and even before the Civil War when the institution of slavery was at its zenith. Faith in the essential justice and goodness of American institutions is not a new phenomenon. Indeed, when William Lloyd Garrison made his famous statement that the Constitution was an agreement with hell, it was hardly greeted with approbation. Half the people thought he was wicked, and the other half thought him insane. And this was at a time when one could make a fairly good argument that the Constitutional system was pretty rotten.(57)
There is something about the Constitution, the central text of American government, that makes people, and especially lawyers, want to bow down before it. The Constitution invites idolatry.(58)
And if we cannot bow down to the Constitution as it actually exists, we will bow down to a Constitution of our imagination. In this sense, even the ideal constitutionalist can be an idolator.
I am not enough of a comparativist to know whether other constitutions invite similar degrees of idolatry. I do know that many people tend to think that their systems of government are pretty good, and they tend to see injustices as marginal or exceptional to the political scheme. This phenomenon is part of what social psychologists call “belief in a just world,” and the phenomenon has been observed in lots of places: not only in liberal democracies like the United States but also in more repressive regimes like South Africa during the era of apartheid.(59)
Many people, it turns out, tend to think that their governments and political systems are basically just, even when to the outside observer they seem very unjust. It is likely that lawyers are caught up in this phenomenon even more than the average citizen. For lawyers are practiced adherents of role morality. If the Constitution invites idolatry, lawyers are surely the high priests in the temple.
Quite aside from the natural tendencies of all peoples to chauvinism and belief in a just world, I want to argue that the very attitude of fidelity to the Constitution is partly responsible for this predicament. To pledge fidelity to something and simultaneously believe it to be riddled with evil produces serious cognitive dissonance. That dissonance must be alleviated in some way. One must either change one’s beliefs about the facts or one’s values, or both. If fidelity to the Constitution cannot be jettisoned - because it is the basic assumption of constitutional legal argument and constitutional theory - this leaves only the possibility of reorienting one’s beliefs and attitudes about the situation. There are literally dozens of ways to do this. One can ignore or forget about the existence or extent of injustices or one can grudgingly accept them as bad but not too bad. One can even offer apologies for them. And human minds are sufficiently agile that they can even alternate their attitudes as the occasion demands, one day decrying the injustices of our society and the next day putting them out of our mind as we engage in the practice of constitutional fidelity. Even the most sensitive of us can apply a temporary dose of moral Novocain when we turn to the intricacies of the American Constitution.
Committed as most of us are to constitutional fidelity, we cannot deny the possibility of such psychological pressures at work on us and in our judgments and attitudes about American society. Rather, we must recognize them as an inevitable price of fidelity, of pledging faith in the Constitution. The turn to ideal constitutionalism is simply one way of assuaging the cognitive dissonance produced by fidelity to the Constitution in a world of injustice. By separating the ideal Constitution from positive law and received interpretation, we can blame bad judges and politicians rather than the document we pledge faith to.
Nevertheless, the pressure to reduce cognitive dissonance affects even our views about the best interpretation of the Constitution. For our views about the ideal Constitution are not wholly free from the political consensus of the time in which we live. Whether radicals or moderates, our vision of what the Constitution is and could be is largely derived in response to that consensus and cannot stray too far from it.
Each of us has a sense of what readings of the Constitution are plausible and what readings are “off-the-wall” even for the purposes of a Shadow Constitution. The cognitive dissonance produced by our faith in the Constitution in an unjust world affects this calculus. First, we will tend to minimize or selectively ignore those injustices that cannot be reached by plausible interpretations of the Constitution (including our ideal model). Second, and conversely, we will tend to think that the constitutional reforms necessary to respond to the most serious problems of injustice do not require “off-the-wall” constitutional arguments. In other words, there are subtle pressures to believe that although injustices remain in this country, and are not reached by the Constitution (including the best interpretation of the Constitution), they are not seriously and profoundly great injustices. This is not an attitude about the constitutional injustices of the past, from which we are suitably distanced and towards which we can be properly shocked and dismayed, but about the injustices of the present, which hit us, as the saying goes, where we live.
One might imagine that the ideal Constitution in our heads, the one that need not hew to precedent or conform to the status quo, the one that we might impose if we were the Chief Justice and all of the Associate Justices together, is some how freed from the pressures of cognitive dissonance. Yet the problems of constitutional evil haunt us even there. As aspirationalists we can have faith in the Constitution because we believe that some day it will be redeemed, and on the day of its redemption it will live up to its promises of basic justice and decency for all. But what if we were convinced that the day of redemption would be grossly insufficient, that the Constitution will always leave in place serious and profound evils? In that case even the gambit of ideal constitutionalism still produces cognitive dissonance, for it is not clear why such a document deserves our fidelity when even its finest version is so seriously wanting in justice. Therefore the ideal constitutionalist must believe that someday every valley shall be exalted, and every mountain and hill laid low, the crooked straight and the rough places plain, even if that day is far off and requires great struggle to achieve. But the flip side of that faith is that the injustices that the ideal Constitution does not and cannot reach cannot be deep and profound ones; they cannot be of the same magnitude as slavery.
Mark Graber has recently noted that from the standpoint of today’s left, the best example of an injustice that the Constitution does not respond to is the distribution of income in this country.(60) When pressed to defend themselves against the charge of judicial activism by giving an example of a situation they find undesirable though not unconstitutional, liberals can happily point to distributional considerations.(61) But this may simply reflect the fact that liberals have given up on pushing for redistributional reforms in the present political era, an attitude reflected both in the generally conservative shift in American politics in the past twenty years and the current constitutional consensus that has responded to this shift. Certainly in the 1960s the constitutionalization of welfare rights was very much on the agenda of the liberal academy, even if it was not yet written into the positive law of the Constitution.(62)
If the argument for constitutional protection of the poor is “off-the-wall” now, it is because in a conservative age more people (and particularly more elites) seem complacent about the distribution of income.
Indeed, we can flip Graber’s point the other way: If we thought that the most serious injustice facing our country today was the distribution of income and the plight of the poor - as opposed to racial or sexual discrimination or the right to abortion - why is the argument that the Constitution forbids this evil clearly “off-the-wall”? Why is this not the greatest problem of constitutional evil since slavery? Why is it not slavery? And if we really believed that it was so evil, and the country that permits this oppression to continue so wicked, why should we respect a Constitution that permits such evils, empowers governments to worsen them and may even prevent some forms of amelioration?
These questions are more troubling for liberals than for economic libertarians and traditional conservatives. The latter groups are not so troubled by maldistribution, because it is a necessary if unfortunate consequence of their vision of social justice. But we liberals (and here I include myself in this category) have been blinded in part precisely by our sense of fidelity to the Constitution and the constitutional tradition to believe that what the Constitution sanctions cannot be as bad as slavery, that there is no serious remaining problem of constitutional evil in the best interpretation of the Constitution, only relatively minor ones.
These positions reflect the psychological pressures that the exercise of constitutional fidelity places upon us. Our fidelity to the Constitution is partly our fidelity to the governing political ideology of our time, and to the political realities it seems to impose on us. Ironically, even the ideals of our time reflect its realities; even the possibilities of utopian constitutional thought uncannily respond to the sense of the politically possible. Utopianism, like so many other features of human thought, is social; often there is nothing so parochial as peoples’ visions of what transcends the limits of their society’s thinking.
The pressure of constitutional fidelity, coupled with the ideological pressures of our political moment, may cause us to turn our attentions away from injustices we might see around us, and thus hide the very possibility of serious and sustained constitutional evil. In this way, pressures to reduce cognitive dissonance affect not only our attitudes about what is just or unjust, but also our attitudes about what forms part of the “Shadow Constitution,” the ideal Constitution of best interpretations that academics hope will someday become the positive law of the Constitution.
If my analysis is correct, it would apply equally well to enlightened constitutional thought during the time of slavery. Fidelity to the Constitution combined with the general recognition that the Constitution protected slavery during the antebellum period probably led many progressives to think that slavery, although an evil, was not so great an evil that it had to be abolished immediately, and that a compromise of some sort could be struck with the South and its “peculiar institution.” And indeed, I have just described the antebellum position of many “progressive” thinkers on slavery, including Abraham Lincoln.(63)
The enlightened liberal position on slavery, detesting it but doubting its unconstitutionality and wishing to make peace with the slave-holding South, is not the attitude of some bygone era. It is the attitude of the contemporary liberal constitutionalist. It is the attitude of the “enlightened” liberal in a conservative age.
Precisely because utopianism is social, the boundaries of utopian thought may change rapidly when circumstances produce relatively quick shifts in public opinion. Cataclysmic events like the Civil War no doubt profoundly influenced the center of American public opinion both in the North and the South, and thus made many things thinkable that were unthinkable before.(64)
Conversely, the strong shift to the right in American public opinion over the last thirty years has made many extreme forms of right-wing utopian thought thinkable and sayable.
The case of homosexual rights is a perfect example of how the possibilities of utopian constitutional thought are shaped by the existing political configuration. In the current constitutional politics of the moment, homosexual rights are something that is “on the table”; they offer an interpretation of the Constitution that is “on the wall” even though it is not yet enshrined in positive constitutional doctrine and is bitterly resisted by many conservatives. Under these conditions, the left can recognize and even luxuriate in the serious injustice of current doctrine and its lack of fidelity to the “real” Constitution. The protection of homosexuals is “not yet” in the positive law of the Constitution, but it will be some day and deserves to be. On the other hand, the present generation of liberals has largely given up thinking that the protection of the poor is “not yet” in the Constitution. They now tend to think that it just isn’t in there at all, even in the Shadow Constitution. For this reason I suspect that there are many more liberals who think that Bowers v. Hardwick,(65) Richmond v. J.A. Croson Co.(66) and R.A.V. v. St. Paul(67) are bad constitutional law than those who think that Dandridge v. Williams(68)
is. This is no doubt reflected in the larger number of recent articles on the former subjects than the latter. The difference between Bowers and Dandridge is the difference between the recognition of a temporary constitutional evil that we can live with - because we can claim that the “real” Constitution does not sanction it - and the recognition of a more permanent constitutional evil that we cannot live with; hence we have given up believing that the “real” Constitution forbids it.
One might object to this entire line of argument on the grounds that it overlooks an important feature of the American constitutional tradition - the principle of constitutional modesty. The Constitution, it is said, is a document for people of “fundamentally differing views”(69) and different times, made to endure “the various crises of human affairs.”(70)
The Constitution is not designed, nor can it be designed, to right every evil and social injustice. It merely establishes and protects the basic structures of a democratic state. The enormous number of injustices that flow within such a state are no concern of the Constitution. Only those having to do with basic human rights and basic democratic governance are its concern. Hence we can pledge fidelity to the Constitution if it does those things well and no others, and there is no cognitive dissonance created by that pledge, no need for spiritual compromise or self-deception. We do not expect a plumber to be an electrician, or a doctor to be an engineer. Each has her own virtues; we believe no less in one person’s skill because she lacks the skills of another person doing another set of tasks. In the same way, the test of our fidelity to the Constitution should concern whether it adequately performs the limited set of tasks we expect of it - establishing a democracy and protecting basic human rights. To ask more of it is immature; it is not the demand of fidelity but of aggrandizement.
All of this is true enough. All constitutional scholars subscribe to some version of constitutional modesty; no one thinks that the Constitution rights all wrongs. But the question is rather how we define the contours of the Constitution’s modest set of tasks, and what role the need to reduce cognitive dissonance plays in the setting of these boundaries.
For example, how does the argument for constitutional modesty look when applied to the case of slavery? Would we say that slavery presents no problems for constitutional fidelity because the Constitution is simply not designed to right that particular wrong? Would we say that it creates no psychological pressures for the reduction of cognitive dissonance because we don’t really expect the Constitution to eradicate all evils? Or would we say, on the contrary, that, as applied to this case, the conclusion that the Constitution was not designed to eradicate all evils is a consequence of the need to reduce cognitive dissonance caused by its sanctioning of slavery?
Of course, one might respond that the case of slavery is quite different from any evils we face today. Fidelity to the Constitution was troubling when the positive law of the Constitution permitted slavery precisely because the existence of that evil threatened basic human liberties and the ideal of democratic self-governance. Slaves are human beings too, and they deserve basic rights and the power of self-governance as much as their putative masters. But this answer shows that the “proper agenda” of the Constitution, the appropriate realm of its modesty, is not fixed, but malleable depending on our understanding of the gravity of the situation before us. The question of what constitutes a serious denial of human rights or democratic self-government is not given in advance, but must be worked out through reflection and experience. And this activity of reflection and experience is precisely where the psychological pressures I am describing find their home.
If we thought that the conditions of poverty and denial of equal opportunity in this country were so serious as to make a hollow mockery of the Constitution’s promises of human rights and democracy, why would the alleviation of these conditions not be part of the Constitution’s “modest” agenda? If one thought that this country supports and reproduces “savage inequalities”(71)
that make the lives of millions of its citizens miserable and relegate millions of its children to lives of unremitting desperation, pain and psychological trauma, why would the argument from constitutional modesty not ring as hollow as it does in the case of slavery? Conversely, to what extent does our disbelief that these inequalities do make a mockery of the Constitution and our calm assurance that there are some evils the Constitution cannot deal with stem not from principled reflection but psychological necessity? Claims of constitutional modesty are not a solution to the problem of constitutional evil; they are a restatement of it.
Some twenty years ago, Barbara Jordan, then a freshman Congresswoman from Texas, made an impassioned statement at the House Judiciary Committee hearings on the impeachment of Richard Nixon. “My faith in the Constitution,” Jordan said, “is whole, it is complete, it is total, and I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction of the Constitution.”(72) These are stirring words even today, especially moving given that they were uttered by an African-American woman who had endured many hardships and would endure many more in her all too brief life and political career. Like Barbara Jordan, I too want to believe in the Constitution. I want to remain faithful to it, and I want others in the legal profession, government administrators, legislators and judges to remain faithful to it as well. I am deeply saddened and troubled when they betray it and its promises, when they trample on its letter and its spirit for political advantage and personal gain. I believe, moreover, that the Constitution is more than its positive law, that the Constitution has not yet been redeemed, and I hope every day for its eventual redemption. I know that many who read these words join me in this hope. But as you, and I, and all of us expound our faith in the Constitution, we must also understand what our faith does to us. We must recognize that fidelity to the Constitution has a power over us, that fidelity is not only legitimate but that it also legitimates. When we discuss fidelity, we are not discussing a property of interpretation but a predicament of human existence. To be faithful is to gamble, and the stakes we offer are not our property but our integrity, not only our lives and fortunes, but our Sacred Honor. Let us have faith then, but let us have faith that our faith is not in vain.
50. We might also contrast Justice Story’s situation with the so-called “inferior” court judge who sits in a federal trial or circuit court. It is important to remember that in interpreting the federal Constitution, the work of inferior court judges is almost exclusively doctrinal. They are required to figure out and enforce what the Supreme Court and other higher courts want them to do, regardless of their own views of the justness of higher court precedents. See Sanford Levinson, On Positivism and Potted Plants: “Inferior” Judges and the Task of Constitutional Interpretation, 25 Conn. L. Rev. 843, 845 (1993). The Supreme Court has been particularly jealous of its power to shape constitutional law. It has repeatedly rebuked lower courts for attempting to change the Constitution by disregarding the Supreme Court’s views: “Unless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be.” Hutto v. Davis, 454 U.S. 370, 375 (1982) (per curiam).
For me, signing the Constitution - and agreeing therefore to profess at least a limited constitutional faith - commits me not to closure but only to a process of becoming and to taking responsibility for constructing the political vision toward which I strive, joined, I hope, with others. It is therefore less a series of propositional utterances than a commitment to taking political conversation seriously.
Levinson, supra note 41, at 193.
53. This is not a claim about the exclusive power of Supreme Court Justices to shape the meaning of the Constitution. Rather, it is a more general point about the social force of arguments about the Constitution made by different people in different social positions. One can point to many key historical figures who were not judges, like Abraham Lincoln or Martin Luther King, and who changed the meaning of the Constitution by their words and deeds. Lincoln was not a judge but a politician, and King was never elected to any office. But Lincoln was the President of the United States, and King was one of the most important American political figures of the twentieth century.
Most legal academics, like most citizens, are neither Supreme Court Justices nor are they key historical figures like Lincoln or King. They may make statements and offer arguments that look rhetorically similar to statements by these figures but they will not have the same effect in shaping the meaning of the Constitution. We must not confuse the force of reason - the correctness or justness of our arguments about what the Constitution should mean - with the force of our reasoning: the social power that our arguments will have because of who we are and what we do.
57. Actually, there were a few Garrisonians who agreed with the resolution, but their numbers were quite small. In the same way there are always a small number of people in any age who understand the Constitution to be a pact with hell. But the wonder is not that they are so few but that they are so many.
61. See, e.g., Dworkin, supra note 32, at 36 (arguing that the jurisprudential principle of integrity “would bar any attempt to argue” that the Constitution requires economic equality or distributional rights).
62. See, e.g., Frank I. Michelman, Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 Harv. L. Rev. 7 (1969) (arguing for a constitutional right to minimum welfare); see also Graber, supra note 59, at 12-16 (discussing liberal arguments for constitutionalization of welfare rights).
63. For example, in Lincoln’s October 16, 1854 speech at Peoria, Illinois, he makes no secret of his hatred of slavery and his recognition of it as a serious moral evil. Abraham Lincoln, Speech on the Kansas-Nebraska Act at Peoria Illinois, in Abraham Lincoln: Speeches and Writings 1832-1858, at 307, 315 (Don E. Fehrenbacher ed., 1989). Yet he too is shaped by the political realities of his time, and he offers this famous equivocation:
When southern people tell us they are no more responsible for the origin of slavery, than we; I acknowledge the fact. When it is said that the institution exists; and that it is very difficult to get rid of it, in any satisfactory way, I can understand and appreciate the saying. I surely will not blame them for not doing what I should not know how to do myself…. I think I would not hold one in slavery, at any rate; yet the point is not clear enough for me to denounce people upon. What next? Free them, and make them politically and socially, our equals? My own feelings will not admit of this; and if mine would, we well know that those of the great mass of white people will not. Whether this feeling accords with justice and sound judgment, is not the sole question, if indeed, it is any part of it. A universal feeling, whether well or ill-founded, can not be safely disregarded. We can not, then, make them equals. It does seem to me that systems of gradual emancipation might be adopted; but for their tardiness in this, I will not undertake to judge our brethren of the south.
When they remind us of their constitutional rights, I acknowledge them, not grudgingly, but fully, and fairly; and I would give them any legislation for the reclaiming of their fugitives, which should not, in its stringency, be more likely to carry a free man into slavery, than our ordinary criminal laws are to hang an innocent one.
Id. at 316-17. Four years later, in August 1858, Lincoln repeated these words verbatim in the First Lincoln-Douglas Debate. First Lincoln-Douglas Debate, Lincoln’s Reply, in Abraham Lincoln: Speeches and Writings 1832-1858, supra, at 508, 510-11.
Thus, in 1854, Lincoln took the “moderate” position of arguing for the retention of the Missouri Compromise, which prevented the expansion of slavery north of the compromise line. Slavery in the South was not morally unbearable as a cost of preserving the union, although slavery in new territories was:
Let it not be said I am contending for the establishment of political and social equality between the whites and blacks. I have already said the contrary. I am not now combatting the argument of NECESSITY, arising from the fact that the blacks are already amongst us; but I am combating what is set up as MORAL argument for allowing them to be taken where they have never yet been - arguing against the EXTENSION of a bad thing, which where it already exists, we must of necessity, manage as we best can.
Abraham Lincoln, Speech on the Kansas-Nebraska Act at Peoria Illinois, in Abraham Lincoln: Speeches and Writings 1832-1858, supra, at 329. He reasserted this view in the First Lincoln-Douglas Debate. First Lincoln-Douglas Debate, Lincoln’s Reply, in Abraham Lincoln: Speeches and Writings 1832-1858, supra, at 511-12.
64. For example, only nine years after his Peoria speech, in which he judged the complete abolition of slavery impractical, Lincoln felt it possible to issue the Emancipation Proclamation and free slaves in the rebelling states (although not in the northern or border states). See Preliminary Emancipation Proclamation and Final Emancipation Proclamation, in Abraham Lincoln: Speeches and Writings 1832-1858, supra note 63, at 368, 424. The Civil War made the abolition of slavery thinkable to large numbers of white Americans. The passage of 25 years from 1969 to 1994 has had the opposite effect on Frank Michelman’s argument for constitutional guarantees of minimum levels of assistance. Indeed, the statutory guarantee of minimum assistance has been abolished in the 1996 Welfare Reform Act signed into law by the “liberal” Democratic President William Jefferson Clinton. See Personal Responsibility and Work Opportunity Reconciliation Act, 110 Stat. 2105 (1996); Francis X. Clines, Clinton Signs Bill Cutting Welfare: States in New Role, N.Y. Times, Aug. 23, 1996, at A1.