During the hagiography surrounding the Bicentennial of the U.S. Constitution, Justice Thurgood Marshall dissented. For Marshall, the Constitution could only be celebrated as “a living document.” The original document, and “the government it devised,” was “defective from the start.” Marshall’s words were literally as well as figuratively true, in his view: the document’s flaws began with its preamble and its woefully underinclusive understanding of “We the People.”
Joy Milligan and Bertrall Ross’s recent article, We (Who Are Not) the People: Diversifying Constitutional Interpretation Regarding Fundamental Rights, proceeds from the same premise. “We were never the people,” the article begins arrestingly. Women, minorities, Native Americans, and slaves were irrelevant. The Constitution has procedural and substantive deficiencies, which are “inherent in the document as well as the institutions and rights it creates,” a problem that constitutional theorists and interpreters still have not dealt with sufficiently.
Milligan and Ross contend that the Voting Rights Act of 1965 was the first time that federal voting law truly promoted equality; thus, “No constitutional amendment can be said to have emerged from a functional, inclusive democracy until after 1965.” The article uses this notion to promote the idea that constitutional interpretation now must focus on becoming more egalitarian and democratic.
The article takes unenumerated rights as its focus. The problem here is that the U.S. Supreme Court has been looking back, not forward, by relying on history and tradition as its increasingly central test for constitutionality. The case of Dobbs v. Jackson Women’s Health Organization, nullifying the right to abortion, is a prime example.
This article shows the results of the lack of diversity in the formation—and interpretation—of the Constitution. For example, most constitutional theorists have been white men. But the Reconstruction Congress, and cases like U.S. v. Carolene Products, promoted democracy and egalitarianism. The latter case led to the “representation reinforcement” theory of John Hart Ely in Democracy and Distrust (1980). Despite the Constitution’s long-standing procedural flaws, however, that article focused on process. And Ely’s views were mainly about enumerated equality rights, not unenumerated substantive due process rights.
On the latter front, conservatives in the 1980’s started a successful campaign to overturn Roe v. Wade and eliminate any federal constitutional right to abortion. But the Court’s route to conservative victory on abortion has been more meandering, and its approach to substantive due process more complex or inconsistent. For example, the Court in 2015 supported a right to same sex marriage, rejecting the interpretive method used by the Court to oppose the right to abortion and assisted suicide and relying instead on the dignity-based reasoning of Lawrence v. Texas. There is a methodology conflict.
The authors also point out that the narrow approach of Washington v. Glucksberg and Dobbs are problematic. Those decisions emphasize thin notions of liberty. But as far back as the 1920’s, in Meyer v. Nebraska and Pierce v. Society of Sisters, the Supreme Court employed broader notions of liberty in upholding family rights as against the government.
Milligan and Ross argue that the key question in this area is whether the right is an implicit part of the ordered liberty of the United States. This approach was partly responsible for the Court’s endorsement of a right to use contraceptives, which remains largely undisputed. Moreover, Justice Anthony Kennedy wrote several opinions supporting gay rights. In the end, the authors argue that the tradition and history mode simply defaults to the views of white men, which are not sufficiently diverse to support the nation’s full values. This is the essence of Dobbs, which largely ignored women’s views and interests. And the white men in legislatures did not virtually represent women.
The authors also discuss Edmund Burke, Condorcet, and Dworkin in interesting ways. One of Milligan and Ross’s most important arguments is that a mathematical study based on the views of diverse people reaches a better result than a larger Condorcet approach. The authors show that above all, cognitive diversity makes a positive difference. It guarantees different perspectives. Crowds are wiser when diverse.
Then there is the constant debate over the level of generality in substantive due process cases. The right to abortion could be viewed as a right to privacy. Obergefell v. Hodges also was about a right to marry, not just same sex marriage. One must have a broadened view of history and tradition. The authors support an expanded Ely approach. But given Ely’s adamant opposition to the reasoning in Roe, he may not be an ideal example.
In sum, Milligan and Ross develop and extend Justice Marshall’s “dissent” splendidly. They show that diversity is not just something to prize in the present: its absence from the original Constitution and its formation left deep flaws, structural and procedural, in the document, flaws that are only deepened when we turn to interpret it through the lens of history and tradition. This article demands our attention.
