Constitution as Aspiration
CONSTITUTION AS ASPIRATION
What is the point of constitutional law? What fundamental purpose does it serve? And in what sense is the Constitution law? There are at least two possible types of response to these foundational questions; one quite familiar and one less so. The cluster of familiar responses might be called the "Constitution of constraints." On this view, the purpose of the Constitution is to constrain congressional and executive lawmaking at both the state and federal level. The Constitution imposes constraints, or boundaries, on what lawmakers might otherwise be inclined to do. The Constitution is a source of law, because the point of the enterprise, thus understood, is to impose limits, enforced judicially, on what popularly elected representatives or executives might enact, on behalf of the majority they purportedly represent. And limits, interpreted and enforced judicially, is precisely what we mean by "law."
It is this view of the Constitution that has inspired the outpouring of scholarship and judicial opinions concerned with the countermajoritarian difficulty, and it is this view of the Constitution that has defined the boundaries of most contemporary constitutional argument, at least as it pertains to the bill of rights. For while most constitutional theorists agree that the point of constitutional law is to impose legal constraints on lawmakers from what they might otherwise be inclined to do, they disagree fundamentally over the content of those constraints, and over what the legislative or executive evil is toward which the Constitution is aimed. Thus, liberal constitutionalists view the Constitution's core purpose as the protection of individual rights and liberties against legislation that serves the interests of majorities but runs roughshod over core individualistic values. Conservative constitutionalists view the Constitution's core purpose as the protection of institutions and traditions that might be endangered by a popular legislature's reckless leveling or egalitarian instincts, and proceduralists or process theorists view the Constitution's core purpose as the protection of the openness and fairness of the political process itself. Although these differences are profound, their common grounding is equally significant: they all concur in their understanding of the Constitution as a "Constitution of constraints," and more particularly of legal constraints to be enforced by the judiciary on behalf of interests, traditions, values, or rights that might otherwise be trammeled by an unconstrained majoritarian process.
As familiar and widely shared as this understanding might be, one can discern in our constitutional history and even in our current debates an alternative conception of what the point of constitutionalism might be, and what sense we might make of its self-declared status as "law." On this alternative view, the point of the Constitution is to declare a set of moral and political aspirations for democratic self-governance, rather than a set of judicially enforced legal constraints upon it. These constitutional aspirations, one might argue, are intended to open up and then to guide, rather than constrain, political debate and legislative decisionmaking. They constitute a set of ideals for a deliberative democracy which the legislative and executive branches ought to aim for. They constitute law, but not in the adjudicative and judge-focused sense meant by the legal realists; rather, they constitute law in the sense often embraced by eighteenth-century natural lawyers: aspirations or ideals meant to guide the hand of the lawmaker. These ideals, or constitutional aspirations, are then realized not only or even primarily through judicial decisions that invalidate legislation, but rather through legislative or executive decisions that further them.
What those aspirations might be, of course, is open to question and a matter of controversy. But because constitutional aspirations, unlike constitutional constraints, are reflected in legislative or executive enactment rather than exclusively in judicial decisions, their content need not reflect the limiting practical and jurisprudential conventions of adjudicative enterprises. The meaning we ascribe to constitutional aspirations, or the content we find in them, or the interpretations on whose behalf we argue, need not, for example, be subject to the limiting practical need to be reasonably subjected to judicial enforceability. Nor need the content ascribed to constitutional aspirations be subject to the jurisprudential or moral imperatives that constrain courts in all adjudicative lawmaking: that the decisions which give them meaning reflect the peculiarly judicial legal goals of horizontal equity, legal justice, and respect for past practice and precedent. Rather, our constitutional aspirations, and thus the interpretations we suggest for those constitutional phrases that might express them, should serve the quite different practical and moral conventions of legislative enterprises: Constitutional aspirations, understood as ideals governing lawmakers in a deliberative democracy, should, for example, encourage open and informed political democracy among all sectors of society, guide the legislature toward an appreciation and concern for the common good, direct it against favoritism, factionalism, or self-interest, forbid the creation or tolerance of castes, and point law toward the well-being of all.
If we attend to the aspirational content of our Constitution, different potential meanings of some of its key phrases emerge. For example, the first amendment might be understood, aspirationally, as aimed at the invigoration of political debate and the protection of dissent, rather than as a constraint on all forms of legislation that in any way inhibits private expression. If so, then legislation that inhibits some private expression toward the end of opening up political debate—such as regulations limiting the amount of money spent in political campaigns—might be understood as fulfilling a constitutional aspiration rather than violating a constitutional constraint. The guarantee that no state shall deny an individual's liberty without due process of law, found in the Fifth Amendment and the fourteenth amendment, might also be understood as expressive of a constitutional aspiration: that each individual enjoy some measure of positive liberty—some measure of true self-governance—which no state may challenge and which Congress must aggressively protect, rather than a constraint on progressive legislation that interferes with private rights of contract or property. In this perspective, a federal guarantee of minimal welfare or income sustenance might be understood as essential to this constitutional aspiration. The repeal of such a minimum might be viewed as violative of the aspiration.
To take a more extended example, the Fourteenth Amendment declares that no citizen shall be denied " equal protection of the law, " but it is silent on what that protection means. Over the last fifty years, the Supreme Court has produced a working and workable account: the equal protection clause, the Court now reasons, requires Congress to legislate in a way that is rational: legislative classifications must rationally track differences in the world that are relevant to some legitimate legislative end. Racial classifications, according to this standard understanding, are presumptively irrational: they do not reflect any legitimate and meaningful difference between citizens. Legislation that categorizes on the basis of race, therefore, violates the equal protection clause of the Fourteenth Amendment. More generally, any legislation, or any state action, which fails this test of rationality is vulnerable to judicial invalidation. Thus, the constitutional guarantee of equal protection imposes a constraint of rationality on legislating majorities, who may otherwise legislate in whatever way and toward whatever end they see fit. Race, and to a lesser extent gender, are presumptively irrational bases for legislative categorization.
This interpretation of both the scope and the meaning of the equal protection clause follows directly—indeed inexorably—from the more basic understanding of the Constitution as one of constraints. First, scope: The equal protection clause, on this view, imposes a constraint of rationality on Congress, on state legislatures, and more broadly on state action. Where the legislating branch fails the test, the legislation is invalidated. Second, on content: The ideal of rationality imposed on Congress and on state legislatures by the Fourteenth Amendment echoes the ideal of horizontal equity or legal justice required of courts in all areas of lawmaking that "likes must be treated alike." The "equal protection" that emerges from the Fourteenth Amendment, when viewed as a part of the constitution as constraint, is an echo of the jurisprudential ideal of law-making required of courts. Likes must be treated alike, and claims of difference, and hence different treatment, carefully defended.
Viewed in this light, the paradigm moment of constitutional lawmaking under the Fourteenth Amendment is clearly brown v. board of education (1954). The state legislature had legislated on the basis of race, thus failing the test of rationality. Racial differences between citizens, in this case school children, are not rationally relevant to any legitimate state interest. The Court properly invalidated the law. The Constitution thus acted as a constraint on errant legislation, and on the irrational legislature that produced it.
If, however, we view the Fourteenth Amendment's equal protection clause as expressive of a constitutional aspiration, quite different potential meanings emerge. Viewed as a moral and political guide to legislation, the clause might be read as urging upon the state and federal legislatures the task of providing equal protection, through proactive legislation, to groups that are, for whatever societal reason, in need of it. The constitutional mandate, then, is not a directive to courts to invalidate legislation based on impermissibly irrational categorical assumptions. Rather, the constitutional mandate is a directive to state legislatures to enact whatever law is necessary to equally protect citizens against whatever subordinating inequalities has rendered them in need of it—including, for example, the ravages of unchecked private violence, racism, or, arguably, societal neglect—and a grant of power to the federal Congress to take corrective action should the state legislatures fail. The role of the Court in this aspirational enterprise of equality is minimal, while the role of the state and federal legislatures is primary. The Fourteenth Amendment expresses an aspiration, and directs states and Congress to attempt to achieve it.
Both the scope and content of the equal protection clause, on this interpretation, are consistent with the fundamental commitments of the aspirational Constitution. First, on scope: The aim of the clause is to ensure that states and Congress respond to inequalities brought on by social privation or violence coupled with legislative or state neglect. The trigger for constitutionally inspired congressional action, in other words, is not a state's irrational legislation, but rather, private or societal inequality coupled with state inaction. Second, on content: The equal protection clause, on this view, requires of the states and Congress that they act so as to ensure that all people enjoy the equal protection of law. This echoes and instantiates quite general legislative aspirations: to legislate in a way that protects and furthers and enhances the general well-being of all, rather than in a way that furthers the particular interests of some.
Beyond the meaning of particular clauses, however, if we attend to our constitutional aspirations, rather than only heed constitutional constraints, a quite different history of that field of law and politics comes into focus. The history of the equal protection clause understood as a part of our "constitution of constraints" is a history of judicial decisions, reacting to and sometimes invalidating irrational legislative enactments. By contrast, the history of our constitutional aspiration to equal protection is a history of political struggles over the content of equality, periods of public quietude and unrest and eventual legislative enactments, sometimes followed and sometimes not by judicial response. It is a history of our politics, which are sometimes responsive to and sometimes inattentive to and even overtly hostile to constitutional guidance. The paradigm, ideal, climactic moments of this history are not Brown, or roe v. wade (1973), or romer v. evans (1996). Rather, the paradigm moments are the passage of the reconstruction amendments themselves; the passage of the nineteenth-and twentieth-century civil rights acts; the turn-of-the-century struggles over the constitutionality of progressive taxation and the labor movement; the campaigns for woman suffrage; and, in more recent times, the passage of the americans with disabilitiesact; the violence against women act; and, possibly, the passage, sometime in the next few decades, of a federal law forbidding private-sector discrimination on the basis of sexual orientation. At each of these moments, Congress acted constitutionally, but in at least two senses, not just one. At each such moment, it acted in compliance with a constraint of rationality. More consequentially for our politics, at each such moment it acted in accordance with a constitutional aspiration: an aspiration to protect all citizens, and equally, against the damage done by societal privation and state neglect, to correct this damage with federal law, and thus to assure equal protection of the law. And at each such moment, Congress acted in harmony with a higher or natural legal obligation to legislate on behalf of the general good, the general will, or the general well-being—to legislate, in short, in the interest of all of the governed.
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