All Posts by Kenneth Townsend

Progressive Constitutional Theory

 

Does an active and progressive national government require liberal constitutional theorists to articulate and then advocate a comprehensively liberal theory of constitutional law?  “No” seemed to be the answer offered by the Constitutional Theory panel at the recent Constitution 2020 conference at the Yale Law School.

 Video courtesy of Yale Law School.

 

For the budding constitutional theorists among us, Jamal Green’s opening comments provide a word of caution.  Since the role of constitutional theorists “is actually quite narrow,” Green claimed that progressives should not worry too much about trying to convince judges to adopt liberal modes of constitutional interpretation.  Contrary to popular belief, Green suggested that originalism, the right’s preferred model of constitutional interpretation, has not actually accomplished as much as its proponents or opponents think.  Rather, it has simply served as a handy rhetorical device the right has used to buttress the work that is done in the political sphere.  Since the left does not have anything as rhetorically useful, progressives should focus primarily on creating a progressive constitutional discourse from which liberal jurists can draw as opportunities arise. 

Sophia Lee also suggested in her comments that being ambitious is not always the best way to bring about progressive change.  Administrative agencies, in particular, offer opportunities for accomplishing progressive objectives in ways that are often ignored.  If our goal as progressives is to see progressive change, how much does it matter the manner in which that change takes place?  Lee’s argument is not simply one of pragmatism, though – since she believes that administrative agencies are actually more competent to sort through certain civil rights questions. 

Richard Primus offered a warning to progressive constitutional theorists who neglect the importance of professional role differentiation.  Political and legal movements are most effective when they are rooted in an “ethical history” that resonates with a national ethos.  This ethical history is effective because it provides a simple framework into which particular principles can be fit.  It traffics in normative values, unlike the disinterested form of history that social scientists use to explain and describe. Since constitutional experts are often historians and theorists, scholars as well as activists, they face the difficult task of balancing political influence and academic integrity.  At the end of the day, scholars must acknowledge their normative commitments but also be very wary of using history simply to buttress a politically useful narrative, according to Primus.

David Law, the last of the four panelists to speak, was perhaps the one least enthralled with those who “fetishize” the constitution and most frustrated by those who see the constitution as some substantive embodiment of a national narrative, rather than simply a technical tool for accomplishing certain policies.  As Law argued, to spend time discussing abstract problems such as the counter-majoritarian difficulty might be intellectually rewarding for a small cadre of constitutional theorists, but it is too many steps removed from the day-to-day processes of constitutional practice to be of much practical worth.

Picking up on the panelists’ preference for modesty, moderator Paul Kahn used his time to question the “theoretical minimalism” that characterizes the pieces in the Constitution 2020 book and the presentations of the Constitutional Theory panelists.  Gone are Bickel and Ely.  Missing are “veils of ignorance,” Herculean judges, and “ideal speech situations.”  In their place we find those who focus on the particular rather than the general and those who advocate change on technocratic rather than philosophical grounds. Kahn, it seemed, was not entirely comfortable with this trend in constitutional theory.

Questions in the audience picked up on some of Kahn’s observations and touched on other important relevant questions.  One audience member asked if constitutional theorists’ theoretical minimalism was the product of a growing recognition that comprehensive theories and histories inevitably leave out certain groups and particular narratives.  Another suggested that certain ethical histories were simply truer than others and that constitutional scholars have an obligation to cite the right history.  Yet another asked if we should try to understand “truth” as primarily rhetorical.

The panelists fielded many tough questions, but others remain.  For constitutional theorists who value bridging theory and practice, how should we mark where one begins and the other ends?  And might it be the case that constitutional scholars do in fact have more influence than the panel suggested?  Could it be that disclaiming influence represents an effort to avoid responsibility for some of the struggles of liberal politics and constitutionalism during the last generation? 
 

Two Questions for the Establishment Clause

In different ways, Noah Feldman and William Marshall critique the received liberal wisdom concerning Establishment Clause jurisprudence.  Feldman argues that we should adopt the “no money, no coercion” principle of the Founders.  This means the government should reduce religious groups’ access to public funds through faith-based social service or school voucher programs, but become more tolerant of symbolic, non-coercive public endorsements of religion, such as Ten Commandments displays.  Meanwhile, after surveying the values and shortcomings of secularism, Marshall concludes that government should allow religious groups to receive funding, under certain conditions, but should be diligent in preventing new public endorsements of religion.

Two important practical questions emerge from these pieces.  First, to what extent, if any, should religious groups who perform social services be eligible for public funds?  Second, how should we understand the relationship between symbolic endorsement of religion and coercion?

To my mind, Marshall offers a more compelling answer to the funding question.  There is no reason to think that the Founders’ “no money” admonition was meant to put religious groups at a disadvantage compared to non-religious groups.  As Feldman acknowledges, the Founders feared that taxation for religious purposes violated the conscience of those who believed differently.  But, in a modern welfare state in which taxes fund a wide range of controversial ethical and economic endeavors, equal treatment should guard against religious groups being uniquely excluded from funding.  Feldman recognizes that these changed circumstances might lead us to reach different conclusions than the Founders, but he suggests we should, nevertheless, avoid funding religious organizations because competition for the government’s largesse is likely to result in political polarization.  It is far from certain, however, that excluding faith-based groups altogether will not simply lead to political polarization of a different sort.

Marshall rightly notes that, as long as religious groups are not exempted from generally applicable regulations, and as long as state funding does not go to purely religious activity, there does not appear to be any constitutional problem with government funding religious groups that perform public functions.  President Obama seems to agree.

The most relevant question for the symbolism debate is whether or not the state can be effectively neutral between competing conceptions of the good.  If one believes there is a neutral space the government can occupy, then all public symbolic endorsement of religion should be avoided.  If public endorsement of religion persists, even though a neutral alternative exists, it is reasonable to suspect coercive intentions are at work.  If we conclude, however, that the government cannot be genuinely neutral, there seems no principled way to exclude only religious symbols from the public sphere.  To do so, as Feldman observes, is to discriminate against religious perspectives in favor of non-religious ones. 

Marshall is at least as effective as Feldman in diagnosing the shortcomings of secular neutrality, but his greater concern over the coercive potential of religious symbols leads him to conclude that government should not endorse religion, unless the endorsement is part of a benign and longstanding tradition.  Marshall’s conclusion might seem practically appealing, but his distinction between old and new religious symbolism is problematic.  If the state cannot be neutral, which Marshall concedes, why should religious groups who seek public endorsement be denied the same opportunities available to non-religious groups?  Marshall understandably worries about the coercion that could result if certain religious groups capture government interests and then exclude other perspectives, but he fails to appreciate fully that symbolic endorsement, unlike public funding, is not always a zero-sum game.  Whether enacting a local holiday, hanging a plaque at the courthouse, or displaying an exhibit at a public mall, there are many creative ways for the state to endorse religious symbols without it resulting in chaos or coercion.

The good news here is that we, as progressives, can be friendly to religion without compromising our core principles.  In fact, strict secularism, of the sort Marshall and Feldman dismiss, runs counter to progressive values of equal treatment and respect.  In a happy coincidence, the current political climate is a hospitable one for progressives who are open to religion.  We should embrace this political reality with the knowledge that our constitutional and philosophical principles are safe.