Sunday, April 5, 2020
In the wake of my piece on “Common-Good Constitutionalism”, critics of two types — left-liberals who favor living constitutionalism, on the one hand, and right-liberals who favor originalism on the other — published an illuminating set of responses. I would like to begin by thanking those critics, in all sincerity, for showing us what the high ideals of liberal discourse — open-mindedness, deliberation, and tolerance — mean in practice. Their responses have provided us all with a vivid and edifying demonstration of Public Reason in action. I used to suspect that, when questions were raised about legal liberalism — as opposed to the narrow band of permissible questions that can be raised within legal liberalism — liberals of both left and right would jointly enforce the substantive commitments of the governing ideology, lashing out in fear and outrage against the purveyors of ”dangerous ideas,” even resorting to question-begging pseudo-arguments, Know-Nothing imagery, absurd charges of bigotry based on elementary misunderstandings of Catholic theology, and attempts at deplatforming and boycotts in order to silence dissenters. My suspicions have now been resolved.
Furthermore, I have some good news for my partners in this dialogue of reason: there was a series of unfortunate events in the preparation of my piece for publication. The fault is in no way that of the editors of The Atlantic. Somehow the draft transmitted to them for publication was incorrect, indeed the opposite of what I intended, in two crucial respects. (There is some reason to think that a sinister assistant to the Attorney General was responsible, but that is currently under investigation).
First, I am happy to inform the left-liberal critics that the piece was never actually intended to make a Dworkinian argument for reading the Constitution in light of moral principles of the common good. Rather it was intended to make a Dworkinian argument for reading the Constitution in light of moral principles of equality and freedom, as specified by the programme of the American Civil Liberties Union. (Sadly unoriginal, I know; the legal literature is replete with that kind of scholarship). Somehow, a global search-and-replace occurred, and the phrase “Equality and Freedom” was everywhere replaced with “Common Good.” That change inadvertently transformed the piece from a banal effort, safely mainstream within the legal academy, into a menacing harbinger of fascism.
Second, I am equally happy to inform the right-liberals that the piece was never intended to criticize originalism. By some strange oversight, the piece also omitted my other intended argument — an originalist argument that the maximum ideological programme of the ACLU actually flows from the majestic general principles of Liberty set out in the Constitution's text and structure, and articulated in the ratification debates and the public legal culture of the founding era.
Now, the simpleminded moralist might puzzle over why this second point should be welcome to right-liberals. But we lawyers should resolutely ignore the childish question whether a particular method of constitutional interpretation produces objective good or bad. Originalism is far more sophisticated and principled than that. The constitutionalization of the ACLU programme should actually be celebrated by right-liberals as a demonstration of the strict neutrality of the originalist method. To be sure, right-liberal originalists might lament that the Constitution, so interpreted, would then contradict almost all of their professed views about the actual content of morality and justice. But that lament would be a moment of weakness, nothing more. The progressive transformation of the Constitution is a small price to pay for promoting the Rule of Law — rightly understood as an entirely contentless inflexible command, utterly divorced from the substance of the moral law, as we learned when Judge Bork taught us about the overriding importance of Neutral Principles. (Besides, when right-liberals are done talking of principled neutrality they quickly add assurances, extremely reliable assurances, that originalism may soon produce good results — any decade now).
For more than fifty years, right-liberal originalists have continued to play by the rules, as the ACLU programme has been inscribed ever more deeply in our constitutional law. So what if the rules were set by their ideological enemies, predictably dooming right-liberals to an interminable series of defeats and disappointments? Right-liberal proceduralism is a model of how principled neutrality, properly understood, can transcend that sort of merely result-oriented consideration. When right-liberal originalists stand before the bar of judgment, accused of betraying every substantive precept of morality and justice they profess to hold dear, they will have a foolproof defense: they were merely following the Constitution’s orders.
(This post is satirical).