Abstract
These are difficult times for the project of ‘political liberalism’. Frank Michelman is one of the most distinguished advocates for liberal constitutionalism, and one can only wonder if the time has past – that is, if the ‘owl of Minerva’ has perhaps flown – with regard to a constitutional project identified very much with the mid-20th century.
I feel more than a bit constrained in commenting on Frank Michelman’s new book Constitutional Essentials: On the Constitutional Theory of Political Liberalism (Michelman, 2022). The reason is not simply that I have known and learned from Frank literally for decades and indeed dedicated one of my own books, Our Undemocratic Constitution (Levinson, 2008), to him as a ‘model of scholarly engagement’. Rather, my constraint comes from the fact that the book is couched as a very close analysis of the work of John Rawls and, therefore, what he has to say about ‘the constitutional theory of political liberalism’. Rawls’s best-known book, obviously, is A Theory of Justice, but his book Political Liberalism, including the addendum to the paperback edition, is also crucial to the Rawlsian corpus and to Frank’s discussion. The problem is that although I read both many decades ago, I do not remotely consider myself an expert on Rawls and I am scarcely equipped to offer any helpful reflections on the extent to which Frank gets Rawls right.
Moreover, I suspect that I am not alone inasmuch as my own justified interest in this book is not because of Frank’s exegetical talents, formidable though they may be, but, rather, because I remain interested in discerning his own views, in his own voice, about what remain vital issues for anyone interested in the project of liberal constitutionalism. He has, after all, for over half a century been one of the leading voices in the American legal academy in trying to make sense of the complexities of the American Constitution. He is the only person to have been invited twice to write the ‘Foreword’ to the November issue of the Harvard Law Review, which, while devoted to an extensive review of the cases decided by the United States Supreme Court in the previous term, also offers the authors, drawn from the most distinguished members of the legal academy, a chance to offer reflections going far beyond ordinary case analysis. His first ‘Foreword’ (Michelman, 1969) was exemplary in this regard. Widely read and discussed, it served as an introduction to John Rawls; its basic argument, that the Fourteenth Amendment should be read to provide a floor of ‘minimum just wants’ (or ‘needs’) for each and every person who is part of the American polity, was explicitly based on the theory that Rawls was working on and would ultimately publish in 1971 as A Theory of Justice (Rawls 1971). It provided, though the famous notion of the ‘veil of ignorance’, a technique by which individuals, seeking only to protect their own welfare when the veil was lifted, would decide on a fundamental set of rights that they would want a just order to protect, including a set of what we would today call ‘welfare rights’.
That is, liberalism was in effect being redefined not only as what Louis Brandeis famously called ‘the right to be left alone’ – an encapsulation, perhaps, of the basis notion of ‘negative liberties’ – by an overreaching state, but also as the right to receive what we today might label ‘entitlements’ or ‘positive rights’ from the polity, including, say, medical care, housing and education. Formal ‘negative’ rights without the material means actually to enjoy them were hollow, reducing to the notorious right of the rich and the poor alike to sleep under the Paris bridges without fearing arrest from the gendarmes. This was not, according to Frank, echoing most readers of Rawls, what might be labeled a ‘strong’ theory of equality, whereby everyone would end up with an equal set of entitlements to ‘wants’ as well as ‘needs’. Instead, when the veil was lifted, people would discover that in certain circumstances the state would supply a set of needs that would save them from privation. There is a difference, after all, between being supplied with a healthy subsistence diet and the ability to purchase steak or lobster or a fine wine to accompany one’s meal! One might think of this in terms of FDR’s call for a Second Bill of Rights that would provide all citizens with the assurance of at least subsistence levels of food, shelter and medical care (and, perhaps, access to employment). Inequality, however, there would surely continue to be, but according to Rawls (and, presumably, Michelman), it would be justified by the knowledge that the inequality was in fact conducive to produce the resources that would be displaced to succor the poor or disabled, who could not purchase them if simply left to their own devices. This ‘maximin’ principle would assure that those at the bottom of the distributive ladder would nonetheless be better off than in any (just) alternative schema.
Although published in 1969, the essay was about the 1968 Term of the Court, and during that time one might retain at least some optimism (if one was persuaded by Michelman/Rawls) that Frank was laying out the constitutional theory of what would describe and underlie the developing American constitutional order. After all, the 1960s included such breakthrough legislative accomplishments as the Civil Rights Act of 1964 and Voting Rights Act of 1965. These were accompanied by Lyndon Johnson’s desire to create a ‘Great Society’ instantiated in his ability to get Congress to pass the Medicare and Medicaid Programs designed to assure the needy that they would not be left to die in the streets, as it were, because of an inability to afford medical care. There were also some Supreme Court cases suggesting that the poor constituted a ‘suspect class’ and that the Court had some special responsibility to relieve some of the burdens placed on them by the need to pay the state user fees for basic services (including the right to vote, as in state poll taxes).
Had Hubert Humphrey won the 1968 election, as Cass Sunstein has argued, perhaps Michelman would indeed have been the architect of American constitutional jurisprudence as enunciated by the Court. He had, after all, notably clerked for Justice William J. Brennan, and many of us believe that it is at least as accurate to refer to the Court of that era as the ‘Brennan Court’ as the ‘Warren Court’. Humphrey did not prevail, of course, and Richard Nixon in roughly 5 years was able to appoint four new justices, including Warren Burger to succeed Earl Warren. The ‘Nixon Court’ dashed any hope that Frank’s vision would in fact be accepted. Indeed, so completely was the Michelman-Rawls vision dashed that Ronald Dworkin, although influenced by Rawls, announced by the end of the 1970s that Hercules himself, for all of his commitment to ‘taking rights seriously’, could not discern in the American constitutional fabric an entitlement to the kind of welfare rights that seemed to be on the horizon in 1968.
Frank’s second ‘Foreword’ (Michelman 1986), focused on another theme then prominent among constitutional theorists (in part because of Frank’s own writings), the meaning of living in a civic-republican (and not merely ‘liberal’) constitutional order. The essence of the former is that decisions would be reached only after genuine and respectful debate among contending parties who would take seriously their duty to think in terms of the common good rather than the mere pursuit of selfish desires. Recall that Montesquieu believed that a republic could survive only in a ‘virtuous’ political culture. Frank was not naive. It was clear, for a variety of reasons, that such ‘deliberative democracy’ was difficult, if not impossible, in a large and fractious society, where most people were too concerned about their private wants to devote sufficient time to the kind of deliberation necessary to legitimate crucial political decisions. But, we were then told, we did have a model of such deliberation, which at its best operated under the Habermasian injunction of being persuaded only by the force of the better argument, in the Supreme Court. That was ultimately what justified their rather remarkable role in purporting to resolve central disputes that, left unresolved, might tear the political order apart. One might, in this context, point to the so-called ‘plurality opinion’ in the 1992 Casey case, where Justices O’Connor, Kennedy and Souter solemnly told the American public that they/we were under a duty to accept the Court’s views on the constitutional protection of abortion as a mode of exercising reproductive choice as dispositive. This was, of course, in line with other decisions – most of them linked with the Court’s attempts to decide cases involving civil rights and the aftermath of America’s centuries-long reality of race-based chattel slavery and then a Jim Crow system of apartheid – in which the Court proclaimed itself to be the ‘ultimate interpreter’ of the Constitution. To be a ‘good citizen’ was defined by submission to decrees of the Supreme Court issued only after deep deliberation by the justices themselves.
That was then, however, and now is now, almost four decades later. All of us presumably realize the truth of the adage that ‘the past is a different country’, where things were done differently, and the question is what are the exact borders created and marked by the passage of time. When do our own lives separate into distinctly past and present aspects? Even if our idea of personal identity may try to unite our every moment into one coherent narrative, most of us are also likely to explain (or excuse) behavior from long ago by saying that we were, in significant respects, different people, not who we are now. I also find myself thinking of the Hegelian metaphor of the owl of Minerva flying at dusk, that is, at the moment when we can in fact discern that an epoch has come to an end, that we are now in a position to understand it in a way that we could not when we were in the midst of it. To be sure, we can always quote Zhou en-Lai’s famous (perhaps apocryphal) answer to Henry Kissinger about the importance of the French Revolution – ‘it’s too early to tell’ – but most of us are probably willing to offer at least preliminary assessments.
So let me suggest the following dour possibility: Frank is writing at the moment when ‘the constitutional theory of political liberalism’ is nearing its end as a discrete historical phenomenon that could be said to mark the central instantiation of all respectable political regimes. Just as economic historians regularly refer to the trente glorieuses – the 30-year period of remarkable economic growth in the West following the end of World War II and concluding sometime in the 1970s with the oil shock and other developments – so we might refer to a similarly glorious period when what we call ‘liberal constitutionalism’ triumphed. Perhaps this should begin with the ‘imposed’ constitutions on Japan and Germany and then the burst of ‘self-imposed’ (more or less) constitutions that include the post-Franco and Soviet constitutions and perhaps conclude, at least symbolically, with the ‘constitutional revolution’ in Israel and the 1996 South African Constitution. One might read Francis Fukuyama’s famous (or notorious) musings on ‘the end of history’ and believe that perhaps that described, at least, the end-point of ‘constitutional development’. That is, the future would bring an ever-deeper consensus around the notion of ‘liberal constitutionalism’, and arguments, which would surely continue, would, nonetheless be at the margin, ‘interesting’ in an academic sense, but not truly ‘basic’ to identifying the regime as a ‘liberal’ one.
I have no idea to what degree John Rawls was read or absorbed by the designers of these various post-1971 constitutions, but one can fairly easily categorize them as part of a common family of liberal constitutions. All featured protections of rights, many of them including the socio-economic rights about which Frank wrote in ‘Protecting the Poor’. This was true, interestingly enough, with regard to, say, the Iraqi Constitution written following the Iraq war of 2003. Whether or not it can be described as an ‘imposed’ constitution, it was surely influenced by American ‘advisors’, and one can read a constitutional text that is far more protective of socio-economic rights than is, for example, the 1787 United States Constitution of the United States, even as formally amended or interpreted by the Supreme Court. Just as important was the worldwide creation of courts, some of them specifically labeled ‘constitutional courts’. They were tasked with protecting these rights against incursion or, in some cases, even being able to order recalcitrant legislatures to impose taxes or create bureaucracies that might be necessary to realize the ‘positive rights’ that now complemented traditional (and relatively costless, or at least far cheaper) ‘negative rights’. At the very least, they could jog legislatures to act by reminding them of their ‘constitutional’ responsibilities. I can well remember, for example, sitting in on a course at the Harvard Law School jointly taught by Frank and former South African Justice Richard Goldstone about the South African Constitution; much attention was necessarily placed on the juridical meaning of the welfare rights clauses of the new Constitution written in the aftermath of the end of apartheid and the coming to power of the African National Congress. This captured the spirit of international faith in what might be called the general project of liberal constitutionalism, including heroic judges willing to carry out their solemn duties as guardians of the constitution.
I have a special interest in the term ‘constitutional faith’. Frank is kind enough to cite a book that I wrote in 1988 with that title. It referred specifically to the phenomenon of faith in – or, to use James Madison term, ‘veneration’ of – the United States Constitution. But one could speak, I think, of a more general, worldwide ‘constitutional faith’. Many American professors were happy to go around the world to offer their advice to drafters of constitutions in other countries. And, of course, there are now almost countless NGOs eager to disseminate their particular visions of the rights that need to be protected and how best to do that, usually involving the creation of quite powerful courts. The Yale Law School for many years has brought together judges from around the world not only to discuss the common problems that they might face, but also, importantly, to bolster collective commitment to the project of liberal constitutionalism, including a willingness to use judicial power when thought ‘necessary and proper’ to enhance its strength in their respective countries. It is no coincidence that one of the leading figures at these annual gatherings was Aharon Barak, the Chief Justice of the Israeli Supreme Court and, almost certainly, one of the most inspirational figures in the worldwide community of relevant judges. On the two occasions that I was privileged to attend those gatherings, because I was a visiting professor at the Yale Law School, morale seemed high even if there was discussion of inevitable problems, including the sheer difficulty of assessing some issues in what perhaps might be called ‘general jurisprudence’ and the presence, in almost all countries, of some critics of what appeared to be a necessarily strong judicial role.
Those days seem long gone. Justice Barak retired in 2006. Today he is the subject of unrelenting attack from many Israelis who dominate contemporary Israeli politics. This includes, of course, including, the current 2023 Netanyahu government that is dedicated to undoing the independence and the liberal ethos identified with ‘his’ Court. The attack on Barak and the Court he did so much to create symbolizes what might be described as a contemporary pincer movement: Much of the attack on ‘liberal constitutionalism’ comes from one flank forthrightly advocating ‘illiberal constitutionalism’, led, worldwide, by Victor Orbán. But there is another flank, in which proponents of one or another form of ‘populist’ or ‘democratic constitutionalism’ also rejects key tenets of what is usually identified with ‘liberal constitutionalism’ if that requires accepting judges as ultimate ‘guardians’ of the democratic order.
So consider the introduction to Chapter 10 of Constitutional Essentials, which treats ‘Justification-by-Constitution, Economic Guarantees and the Rise of Weak-Form Review’: The possibility, in our time, of a society just and stable among persons free and equal rests on the hope of constitutional faith, of public confidence sustained in a justification- worthy constitution. So argues political liberalism. That still leaves judicial review as an open question. Constitutional fidelity does not conceptually or logically entail or require this particular institutional feature, and it will be a part of this chapter’s business to show how the political liberal idea of justification-by-constitution may sometimes fight against it. That turnabout [from reliance on courts] will occur when guarantees deemed essential for a justification-worthy constitution include some whose application would seem to stretch beyond the breaking point the capacities of courts of law as dominantly conceived in the surrounding legal culture…. (Michelman 2022, 137).
As the chapter title suggests, the ‘guarantees’ whose safeguarding might in fact test judicial capacities are economic, the positive rights that flourished among constitution drafters after World War II (and were certainly absent from the consciousness, say, of the Framers of the U.S. Constitution in 1787 or even during the so-called Reconstruction in 1868). But the negative pregnant is that we might still wish strong courts to safeguard the classical negative rights whose definition and enforcement do not, presumably, test ‘the capacities of courts’ to vindicate the overall constitutionalist enterprise. Still, it is extremely telling that Frank concedes that judicial review is not a sine qua non of ‘constitutional liberalism’. Is the Netherlands, after all, not a liberal order simply because it has no ‘judicial review’ of parliamentary statutes? Of course, the Netherlands is very much a part of the European Union and a signatory to the European Convention of Human Rights, so it may be misleading to describe the Netherlands or Ireland or even the United Kingdom, at least until it renounces the ECHR and the Strasbourg Court charged with implementing it (quite often against the United Kingdom), as truly free from being enmeshed in a complex system that can accurately be described as judicial review.
Today, though, there is greater willingness to question the wisdom of ‘constitutional faith’ in many actual constitutions, to wonder whether they meet the criteria set out earlier in Constitutional Essentials for being ‘justification-worthy’. Why would one necessarily believe this to be the case with the United States Constitution, for example? The 1988 edition of my own book concluded with a chapter specifying why I was willing to ‘sign the Constitution’ in a Philadelphia exhibit marking the bicentennial of the 1787 drafting of the United States Constitution. Every visitor was given the opportunity become a latter-day ‘ratifier’, and after some thought, I added my signature. By 2006, when I published Our Undemocratic Constitution, I opened the book with a chapter explaining why I did not ‘sign the Constitution’ on the opening of the National Constitution Center in Philadelphia in 2003. When I published a second edition of Constitutional Faith in 2011, I included a new afterword explaining why I had lost my own faith and, implicitly, suggested that it was a mistake for anyone else to have faith in such a patently defective Constitution. One might look only at the wildly ‘unrepresentative’ nature of those who are described as the ‘Framers’ of the Constitution in 1787 or even the so-called ‘Reconstruction’ Amendments of 1865-70. But there are also substantive problems. The original Constitution was procured only by grievous compromises with slaveowners and the states whose politics they dominated. That slavery was formally abolished in 1865 did not in the least mean that the politics of white supremacy that undergirded slavery disappeared as well. The Framers also were forced to what James Madison himself called the ‘evil’ of giving each state equal voting power in the Senate, though he also pronounced it a ‘lesser evil’ than would have been the collapse of the United States itself because of the inability to write a new constitution to replace the ‘imbecilic’ structure set out in the 1781 Articles of Confederation. As Frank once reminded me, John Rawls really did not believe that any constitutions were actually drafted under the constraints of the ‘veil of ignorance’. That is spectacularly true of the United States Constitution. What follows from this obvious fact? Should Rawls be read a truly ‘critical’ theorist, leaving almost all actual constitutions to be viewed as profoundly illegitimate and non-justification-worthy in one or another respect, or are we to engage in some kind of ‘reflective equilibrium’ where any such radical possibilities are tamed by loyalty to the status quo?
Indeed, I have for many years advocated a new constitutional convention that would engage in needed radical reforms. Until then, I regard it as prudent to ‘obey’ the Constitution, but not truly ‘obligatory’ in the sense articulated by H.L.A. Hart in The Concept of Law (Hart 1961). Alexander Hamilton in Federalist 1 declared that Americans had the unique opportunity to engage in ‘reflection and choice’ as to how they wished to be governed – and that they should choose to ratify the new document drafted in Philadelphia. My own view is that reflection should lead us, if given the opportunity, to reject the current Constitution. I do not see why ‘free and equal persons’ engaged in deep reflection would choose to endorse the Constitution. As already suggested, the grotesque overrepresentation in the United States Senate of small and demographically unrepresentative states violates any plausible 21st century theory of democracy (most certainly including that of John Rawls). Avishai Margalit, in his invaluable book On Compromise and Rotten Compromise, notes both that actual politics requires perhaps endless bargaining and compromise and, at the same time, that there should be certain boundaries beyond which we should not go into the land of ‘rotten compromises’, defined in part as the acceptance of the systematic humiliation and degradation of subject populations. Quite obviously slavery is a classic example. So one question for a Rawlsian-Michelmanian is exactly when (and why) the US Constitution became ‘justification-worthy’, since it seems obvious that it did not meet that condition in 1787.
Frank notes, altogether accurately, that ‘[c]onstitutional fidelity is these days a contested idea’ (p. 70). One of the things that is most being contested is the reality or desirability of a strong judiciary. Several chapters offer probing and discussion-worthy insights about the tensions between ‘judicial supremacy’ and more modest, restrained, views of the judicial role. Especially important is a de facto rejection of Ronald Dworkin’s grandiose vision of Herculean judges committed to finding singularly correct answer to ‘hard cases’ and then imposing them, regardless of consequences, on the public. Much more could be said about this.
Instead, I want to focus on an almost anodyne sentence toward the conclusion of his chapter on ‘Legal Formalism and the Rule of Law’. ‘Rawls envisages a supreme court as a publicly trusted arbiter of compliance with a justification-worthy constitution in force’. But it is a reality, I’m certain recognized by Michelman himself, that many do not view the current American Supreme Court as a ‘trusted arbiter’ of the Constitution, even if one might believe, as I do not, that the overall Constitution is ‘justification-worthy’. For many Americans, across ideological lines, the question today is not so much preserving the ‘independence’ of the Court as it is reining in its pretensions to reign over the ostensible ‘solution’ of a variety of crucial questions of public policy.
The majority of the Court today is in the hands of self-proclaimed ‘originalists’ who assert that constitutional debates should be answered by looking to the ‘original public meaning’ assigned to words and concepts over two centuries ago. Such a view to many of us – Frank among them, I suspect – is nonsensical. One might begin with the purely conceptual and epistemological questions of what one means by ‘public meaning’ and why one would believe that ‘it’ can be recaptured, and given binding force, by judges who have no formal training in historical method. Mark Tushnet once described a basic tenet of many lawyers – what he derided as ‘the lawyer as astrophysicist’ – as a sublime confidence that they are smart enough, precisely because they are skilled lawyers, to pick up over a long weekend whatever knowledge is necessary to make them authoritative with regard to any other discipline. But in addition to these questions, there is an additional problem: a Dworkinian insistence on applying what one believes to be a singularly correct answer, independent of consequences, can, by definition, produce quite negative consequences, and one might believe that this is especially likely to be true if one takes beliefs of 1791, even if recoverable, as legally binding on us today.
But, crucially, fewer and fewer analysts believe that the central question is simply finding the ‘right’ method of interpretation that could then be applied by judges. That is, would our qualms be stilled if ‘originalists’ were replaced by proponents of whatever our favorite methodology might be? This seems implausible, for all methodologies have well-known difficulties. As Justice Breyer memorably suggested, the job of a judge is to exercise ‘judgment’ rather than to apply algorithms, however defined, to legal issues that are complex not only because of intellectual difficulties, but also because the contending sides represent perhaps millions of Americans with deep and passionate commitments to different possible resolutions. Think, for example, about contemporary debates in the United States involving abortion, guns or affirmative action, to name only three volatile issues. Under what circumstances, if any, will losers in particular cases be ‘good sports’ and accept the judicial resolution?
Rawls insisted that he was not interested in a polity that relied on modus vivendi. He was out to create something far more substantial than a political compromise that might lead contending parties to lay down their arms, at least for a while. But this didn’t prevent the parties from viewing the status quo as containing within it aspects of deep injustice that in a better world – including one where they were better armed – would be rectified by any means necessary. This view of politics is neo-Hobbesian, where any given agreement may be only a truce that may be broken whenever one of the parties believes it is in its interest to do so. By the same token, the truce – or perhaps we want to call it law – will be obeyed when it is prudent to do so. To put it mildly, Rawls did not have a Hobbesian bone in his body. One suspects that Frank is equally reluctant to enlist in the party of Hobbes, but one aspect of the ‘post-liberal’ world is the realization that the egregious Carl Schmitt was cognizant of important empirical realities about the perception of at least some political opponents as ‘enemies’ even if we are rightly dismayed by his normative political philosophy and where it took him.
Let me suggest that this raises an important, and perhaps paradoxical, point. The more ‘legalized’ a system, particularly if one is supposed to believe that the constitution is truly justifiable because all reasonable persons would assent to it, the more likely it may be that people will in fact be good Dworkinians and ‘take rights seriously’. That is, they may insist on recognition of whatever the law allows them because, after all (a) it is their legal right and (b) the system that generated that right is fair and just to all concerned. If, on the other hand, one recognizes the de facto fragility of any given legal order, that it is the product of prudent calculation and a modus vivendi, then, perhaps, the less individuals or groups will insist on enjoying to the maximum what lawyers would (accurately) say are their legal rights and the more they might take into account the likely consequences for others in the society who are truly antagonized by the potential behavior of the ‘rights holders’. In their important book How Democracies Die, Stephen Levitsky and Daniel Ziblatt emphasize the importance of forbearance in maintaining fragile polities. What this means is precisely that people will refrain from exercising all the rights that might conceivably receive official approval because of social and political costs. What this might mean, for example, is that a same-sex couple wishing to purchase a wedding cake or use a certain wedding photographer will simply go elsewhere if the baker or photographer says that she is opposed, on whatever grounds, to same-sex marriage and that it offends her conscience to be complicit in such a marriage. I have no hesitation in construing the Constitution to allow a state to ban such discriminatory conduct, and I oppose reading the Free Exercise Clause to license what might easily be called bigotry, even if religiously based. But anyone familiar with current American politics knows that subset of religious individuals who continue to oppose same-sex marriage feel very deeply indeed about this and are likely to become ever more radical in their politics if they perceive that a liberal state, devoted to tolerance and a certain notion of ‘mutual respect’, will oppress them. Perhaps, as Ecclesiastes might suggest, there is a time to ‘take rights seriously’ and a time for one and all, whether citizens trying to figure out what to do or even judges called upon to enforce constitutional understandings, to realize that there may be significant costs to taking certain rights seriously at all times and in all contexts.
As several of the papers prepared for this overall symposium note, Rawls was in effect tormented by the problem of coming to terms with the reality of deep cultural pluralism. In his earlier writings, he apparently believed that reason alone could generate an ‘overlapping consensus’ among quite different views and groups that would allow everyone to feel mutually respected and, therefore, to be good sports on those occasions when their antagonists in fact prevailed in the political (or judicial) marketplace. But later, particularly when he was writing Political Liberalism, he appeared to be more skeptical about the possibility of achieving easily manageable overlapping consensus. One presumes that he would be absolutely dismayed by the degree of polarization that characterizes politics in the United States (and not only the United States) today. Consider the implications of the fact that polls have suggested that more Americans would accept inter-racial or inter-religious marriages by their children than marriage with someone of the ‘opposite’ political party. It is, alas, only slightly hyperbolic to describe contemporary American (and not only American) politics in Schmittian terms. Adversaries are perceived as ‘enemies’ rather than fellow citizens devoted to a common constitutional project who respectfully disagree with one another on the best way to achieve it.
For some self-conscious ‘illiberals’, the reference to Schmitt might be heartily embraced. Adrian Vermeule, for example, is the co-author of a book that enthusiastically endorses the basically Schmittian understanding of politics and law, scoffing at those he describes as ‘tyrannophobes’ by expressing fears of an overreaching state that must be curbed in a variety of respects. More recently, Vermeule has converted to the Catholic Church and written, like Patrick Deneen, thorough denunciations of Enlightenment-based liberalism and has called in effect for the embrace of an integralist Catholicism that for some evokes pre-reformation medievalism. Deneen has travelled to Budapest to consult with Victor Orbán, the most prominent advocate of illiberalism, and Vermeule has himself participated in at least one Polish conference with the illiberals then governing that country. I suspect that few of us are tempted to enlist in the contemporary army of illiberalism, wherever found.
But what about those I am increasingly describing as ‘democratic’ – instead of ‘liberal’ – constitutionalists? This, too, is a worldwide phenomenon. Mark Tushnet has written a review of two important books by the British constitutional theorist Martin Loughlin, Against Constitutionalism, and the Argentine legal academic Roberto Gargarella, The Law as a Conversation among Equals, both of which are vigorous defenses of what to many (including Frank?) might be viewed as unconstrained majority rule. And, of course, Tushnet himself has written notably about popular (and populist) constitutionalism. A younger generation of American theorists from the left, Sam Moyn at Yale and Niko Bowie and Ryan Doerfler at Harvard, have written scathing critiques of impediments to actual democratic rule, and they are particularly hostile to a strong judiciary. They bewail the current Supreme Court majority, like most people on the left, but they reject completely that the ‘solution’ is simply to pack the Court with ‘our’ kind of judicial activists. They have no memory and no nostalgia for the Warren-Brennan Court. Harvard in particular may become a battleground between the ‘illiberalism’ associated with Adrian Vermeule and the full-fledged embrace of democratic majoritarianism articulated by Bowie and Doerfler and, perhaps, Michael Klarman, whose own book on the origins of the United States Constitution described the Philadelphia Convention as a ‘coup’ and who has otherwise been harshly critical of the American tradition of both Constitution- and Court-worship. The ‘old Harvard’ represented by the constitutional vision of James Bradley Thayer and Felix Frankfurter, organized around a minimalist form of ‘judicial restraint’, may be making a comeback even as Michelman manifested the strong reaction against that vision.
All books, as Quentin Skinner has taught us, must be assessed, at least in part, within the specific context in which they are written, published and read. John Rawls might be contributing to an endless conversation that traces back to Aristotle and Plato, but he was also writing at a particular moment when a certain version of the liberal constitutionalist project seemed in its ascendance and his own contributions were happily embraced as an elegant way of undergirding that project. We are living in a different moment, and Constitutional Essentials emerges at a much more somber time for those committed to the project. But Frank Michelman’s thoughts, both about Rawls and about the project more generally, remain essential reading for anyone trying to blaze a path in these dark times.
