Should we have a liberal Constitution?

• Author: Seidman, Louis Michael
• Position: The United States Constitution, rev. ed.: How Would You Rewrite the United States Constitution?

Here is a modest proposal: If I had the power to rewrite the United States Constitution, I would first take some time to think hard about the sort of country I wanted to live in. Having done my homework, I would then draft language that, to the best of my ability, insured that we had such a country. Some of the language would be substantive--for example, guaranteeing the rights that I think people ought to have and directly commanding outcomes that I think we ought to reach. Of course, there would also be procedural provisions. Various powers would be allocated and divided, various offices created and the duties of their occupants specified, and various practical details sorted out. But all of these procedural provisions would have but a single purpose--to produce the substantive outcomes that I preferred.

On one level, this approach seems both obvious and question-begging. It is obvious because, after all, what else would one possibly expect? Of course my choice of a constitution will be dictated by my hopes for the country to be governed by the constitution. It is question-begging because it leaves unresolved the really hard issues about what sort of country I should want to live in and about what sort of constitutional design would create such a country.

On another level, though, my proposal is deeply controversial. The constitution I drafted would not provide a level playing field on which people with different conceptions of justice could do battle. It would not be neutral as between competing conceptions of the good. It would not provide terms of fair cooperation for people with different such conceptions. It would not leave to individuals operating within a private sphere the workings out of the distribution of resources or the pursuit of their own conception of happiness. Because my constitution would resolve, or attempt to resolve, all these matters in a particular and controversial way, it would not be democratic. In short, my constitution would lack all the hallmarks of constitutional liberalism.

In this brief essay, I attempt to accomplish two things. In Part I, I defend my proposed constitution against its putative liberal critics. In Part II, I argue that given contingent but highly plausible empirical assumptions, the differences between my constitution and a liberal constitution are less dramatic than one might suppose. There are often sound, nonliberal grounds for supporting institutional arrangements that appear liberal. It turns out, then, that liberalism is both less attractive (Part I) and less necessary (Part II) than its defenders suppose.

1. IN DEFENSE OF MY CONSTITUTION (OR HOW FANTASIZING ABOUT ABSOLUTE POWER CAN BE REALLY FUN, BUT ALSO QUITE DISTURBING)

   Before mounting a defense of my nonliberal constitution, we need to dispose of a move that would short-circuit the argument. Perhaps the kind of country I want (or should want) should be organized around liberal virtues. Perhaps, in other words, I should value for its own sake a system marked by what I take to be the main features of constitutional liberalism: a commitment to procedural fairness, a large private sphere, expansive negative rights, and neutrality with regard to matters of religion and other conceptions of the good. (1) If these are my substantive preferences, then, obviously, I will end up supporting a liberal constitution that encourages these outcomes. To make the argument interesting, then, we need to assume that, as a substantive matter, I prefer something else. For example, I might think that a fair distribution of resources is central to justice and that a liberal society will not produce this distribution. Or I might worry that we face an environmental catastrophe and that liberal politics cannot be counted on to fend off disaster. Or I might believe that a particular set of religious beliefs is simply true and that a just society must be organized around those beliefs. Perhaps these positions are misguided--perhaps I ought to be a liberal. The question I want to address, though, is whether someone like me who is not persuaded by liberalism as a substantive matter should nonetheless favor a liberal constitution.

   At first, it may seem that setting up the argument in this way makes things way too easy. If we start by stipulating the truth of nonliberalism as a substantive matter, then it would seem to follow apodictically that our constitution should be nonliberal. In fact, though, the stipulation clarifies an important point that, in turn, helps support a position the truth of which is not merely built into a controversial premise.

   The point is that substantive liberalism, itself, entails a contestable substantive program that requires a substantive defense. For this reason, liberal constitutionalism is bedeviled by a well-known contradiction. Its chief attraction is its claim to neutrality as between various reasonable political and moral positions. Liberals seize on this neutrality to insist that their doctrine can be embraced by adherents to all these positions.

   But liberalism cannot be neutral about itself. By definition, a liberal constitution biases outcomes toward liberalism and is, therefore, not "fair" to nonliberalism.

   The controversial position that follows from this point is that people who favor nonliberal constitutions should not be subject to special criticism on the ground that they are rejecting "fairness" in the sense of an ex ante right of all persons to equal treatment and regard. All constitutions--including supposedly liberal ones--take contestable positions on points of disagreement. They are all "unfair" to people who have different positions and all of them treat these people unequally. There is therefore no ground for privileging liberal constitutions before the argument about substantive liberalism even begins.

   I have made this point abstractly, but it may help to make it concretely with regard to our own Constitution. Defenders of the U.S. Constitution often argue that it is liberal in the sense that its binding force derives from the fact that it is an agreement that people with a wide variety of substantive conceptions of justice can accept. As Justice Holmes famously said, it is "made for people of fundamentally differing views.'' (2) Several generations after Holmes wrote, John Hart Ely argued that our Constitution was liberal in the sense that it was overwhelmingly about fair procedures. He claimed that for the most part the Constitution did not resolve controversial questions of substantive value but, instead, left them for a democratic process that was fair to all participants in the polity. (3) In our own time, libertarians like Randy Barnett, while less enthusiastic about democracy than Holmes and Ely, nonetheless argue that we have a liberal constitution in the sense that it protects a large sphere for individual liberty. For this reason, they claim, our Constitution should be attractive to people with different substantive conceptions of the good) All of these thinkers, writing within different versions of the liberal constitutional tradition, claim that the U.S. Constitution is worthy of respect because it is transsubstantive.

   These claims are demonstrably false. They are also deeply ironic given our Constitution's origins. The United States Constitution was not written so as to provide common ground for people who disagreed about issues that mattered. Although its apologists persist in ignoring or denying the fact, it is simply the case that an important driving force behind the new constitution came from speculators in Revolutionary War debt who had bought up the debt at pennies on the dollar and then wanted the government to impose taxes high enough to insure that the debt was redeemed at face value? The Constitution was meant to reduce the power of the state governments that threatened these interests and, more broadly, to protect the emerging commercial class at the expense of farmers and debtors. (6)...