Joel Alicea wants to make the world a better place with constitutional theory and thinks that you should, too. More specifically: In choosing how to interpret a constitution, you ought to consult moral views which you believe to be correct, while making room for widespread social practices which aren’t entirely consistent with those views. It’s a testament to Alicea’s intellect, prudence, and rhetoric that readers are likely to be persuaded. His paper, Constitutional Theory and the Problem of Disagreement, feels less like an argument than a friendly conversation from which truth gradually but inexorably emerges.
Call to mind Raphael’s The School of Athens, depicting Aristotle and Plato in conversation. Plato gestures up, Aristotle gestures down. Both philosophers are perfectionists who believe that politics should be organized around an objective account of human flourishing. But one has his head in the realm of Forms and the other takes a more grounded approach. Alicea follows Aristotle.
In Aristotle’s usage, a “constitution” (politeia) was the form of a political regime. The idea of a constitution as normatively weighty higher law developed fitfully over several centuries. Among the contributors to that development was Roman statesman, lawyer, and republican martyr Marcus Tullius Cicero. Alicea thinks that Cicero grasped enduring insights that elude most normative constitutional theorists today.
Alicea describes two dominant approaches to normative constitutional theory. The first is “ideal constitutional theory,” long associated with Ronald Dworkin and his liberal epigones. Here it is exemplified by the anti-liberal common-good constitutionalism of Alicea’s sparring partner Adrian Vermeule. Ideal theorists like Vermeule “construct[] constitutional theories on the basis of controversial moral truth claims[,]” and they’re right to do so. But they err by “plac[ing] little … weight on the practical consideration of whether their ideal theories are compatible with our pluralistic social practices.” The other dominant approach to constitutional theory is “practice-based theory.” Exemplified by living constitutionalist David Strauss and originalist Will Baude, practice-based theory is grounded in “social practices that are broadly shared.” Practice theorists are right to think that constitutional theorist must accommodate morally nonideal social practices. But another David was right in contending that you can’t derive an normative “ought” from a descriptive “is.”
Alicea’s Ciceronian contention is that normative constitutional theory ought to be informed by controversial moral truths and accommodate nonideal social practices. Alicea argues that there’s no coherent way to do normative constitutional theory without believing in some moral truths. Indeed, practice theorists don’t really refuse to get normative. Strauss claims that common-law constitutionalism strikes the right balance between the (normative) values of authoritatively settling questions and settling them in ways that people think make sense. Baude maintains that original-law originalism helps officials discharge their moral obligations to keep their constitutional promises. But Alicea contends that practice theorists don’t adequately justify their approaches because of their “desire to avoid relying on moral frameworks.”
Like Vermeule, Alicea is committed to identifying the morally best constitutional theory. He doubts, however, that any constitutional theory which disregards practice will be morally best. We can think of his own approach as imperfectionist constitutional theory. Alicea seeks as much moral perfection as is possible in a morally imperfect world, and that means accommodating morally imperfect institutions.
Why? Because imperfect people are emotionally attached to their imperfect institutions. Alicea draws upon Edmund Burke’s account of the role of “prejudice”—understood as stable emotional attachment—in sustaining existing practices and resisting efforts to undo them. Owing to prejudice, a seemingly rational intervention in a less-than-perfectly-rational social order may generate worse moral consequences than the disease.
Readers might be tempted to raise a series of normative questions about how much deference Alicea thinks nonideal practices ought to be given. But Alicea’s article isn’t an argument for Burkean conservatism. If you’re sold that practice should carry some normative weight in constitutional theory, you’ve bought what he’s selling. He sold me. Indeed, the only part of Alicea’s paper that I’m not sure I’m sold on is one which is expressly put forward as a “sketch.”
Alicea sketches a distinction between constitutional theory and constitutional design. He conceptualizes constitutional design as a means of addressing the problem of widespread disagreement about controversial moral claims—what John Rawls called “the fact of reasonable pluralism.” Alicea describes constitutional design as “the practical task of constructing a governmental system suited to a particular people with a particular history and set of social practices.” Like constitutional theory, then, constitutional design is supposed to be sensitive to nonideal practice.
So constitutional design has normative content as well as descriptive content. Constitutional design doesn’t necessarily take place through morally ideal processes or produce ideal positive law. But not every process for creating higher positive law will qualify as constitutional design. A military invasion followed by the imposition of positive law that is designed to extract resources from a subjugated population certainly wouldn’t qualify.
Imagine, however, that existing governments send delegates to a convention with the charge of amending the terms of an existing confederacy. Many of the delegates are economic elites and represent governments that enslave large proportions of their populations. A supermajority of the delegates decide to scrap the confederation in favor of an entirely new plan of government that subordinates the existing governments to a new national one, systematically favors enslavers, and contains multiple provisions that are designed to further elite economic interests.
The latter paragraph is, of course, a tendentious account of the Philadelphia Convention which Alicea describes as a “paradigm case” of constitutional design. This account may be wrong (or at least overstated). Still, it’s plausible enough to raise the possibility that Alicea’s concept of constitutional design may be less accommodating of nonideal practice than he thinks. Few entities which we generally refer to as constitutions may be the products of Alicean constitutional design. How should we think about the rest?
But suppose that the Philadelphia Convention qualifies as constitutional design. One of the longest-standing objections to the U.S. Constitution is that it’s too difficult to formally change and thus enables the dead to rule the living. Alicea doesn’t leave much space for legitimate informal constitutional change. Indeed, Alicea discusses constitutional change only when criticizing constitutional theories which permit “significant changes to our constitutional system…through constitutional adjudication.”
The U.S. constitutional order has changed without formal amendment—and not just through constitutional adjudication. Thus, if we focus solely on the framing and ratification of the Reconstruction Amendments, we might be able to see something that looks like constitutional design. But those formal changes were only possible because the constitutional order had already been materially transformed. Transformative acts included insurgency against enslavers following the enactment of the Fugitive Slave Act of 1850; mass, biracial mass politics that elevated an antislavery party to federal power; and a general strike of forced laborers who left plantations for Union lines.
We ought to acknowledge and celebrate empowering constitutionalism that has restructured our politeia to enable more people to lead flourishing lives—even if it doesn’t come via Article V. We ought to set it in opposition to a dominating constitutionalism that is calculated to give some people arbitrary power over others, regardless where it comes from. In her invaluable analysis of what she terms our constitutionalism of force, Farah Peterson has observed that “[t]he Ku Klux Klan’s campaign of terror defined the scope of the Reconstruction Amendments more than its framers’ intentions did, a scope formalized after the fact in Plessy v. Ferguson.” Recognizing, condemning, and resisting—forcefully if necessary—efforts to transform constitutions for the worse is no less morally important than designing them well in the first place.
You can only do so much in one paper, and Constitutional Theory and the Problem of Disagreement is a remarkable achievement. Still, there’s more to American constitutionalism than Alicea seems to capture in his theory-design framework. There is the constituent power of the popular multitudo, which courses through, sustains, and can transform any constitution worth having. Every person who lives within a constitutional order should be able to participate in public institutions which are responsive to their judgments, desires, and demands, and which increase their power over the conditions of their lives. If they don’t exist, we should constitute them—and recognize that our constitution has changed as a consequence. The Platonists among us might not consider such constitutionalism ideal. But as Alicea reminds us, we don’t live in the realm of Forms. We are at our best when we strive for perfection with our feet on the ground. b
