The Constitution Michelman
The Constitution Michelman
The Constitution Michelman
ARTICLE
Proposals to put positive social and economic guarantees into constitutional law
typically meet an objection linked to judicial review (the “institutional objection”).
It seems that a related objection would hold even assuming away judicial
“enforcement.” The constitutionalized rights would, after all, be no less intended to
curb and constrain the choices of current majorities (the “majoritarian objection”).
Constitutionalization of social rights may, moreover, be thought to render the con-
stitution nontransparent in a way disallowed by leading liberal accounts of political
legitimacy (the “contractarian objection”).
On the table, then, are three possible objections to constitutionalization of social
rights—institutional, contractarian, majoritarian. The first, the author argues,
ought to be the least of our concerns; the second is manageable, or at any rate politi-
cal liberals cannot deny that it is while upholding in general the practice of constitu-
tionalism; and the third is grave only if we choose an ideal or normative conception
of democratic decisionmaking that is not the only one available to us, or the best one.
* Frank Michelman is Robert Walmsley University Professor, Harvard University, USA. The author thanks
Norman Dorsen and Patrick Macklem for helpful comments.
1
S v. Acheson 1991 (2) SA 805 (Nm), 813A–B (1991 NR 1, 10A–B) (Mahomed AJ).
(“The Constitution of a nation is not simply a statute which mechanically defines the structures of
government and the relations between the government and the governed.”)
2
Id. Doubtless Justice Mahomed drew inspiration from the Lüth-jurisprudence of the German
Federal Constitutional Court. See the Lüth Case, 7 BVerfGE 198 (1958); VICKI C. JACKSON & MARK
TUSHNET, COMPARATIVE CONSTITUTIONAL LAW 1402–35 (Foundation Press, 1999). Cf Carmichele
© Oxford University Press and New York University School of Law 2003, 13
I.CON, Volume 1, Number 1, 2003, pp. 13–34
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14 F. I. Michelman
v. Minister of Safety and Security 2001 (4) SA 938 (CC), ¶54 (Ackermann & Goldstone JJ) (“Our
Constitution is not merely a formal document regulating public power. It also embodies, like the
German Constitution, an objective, normative value system.”)
3
See RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 101–02 (Harvard Univ. Press 1977) (distinguishing
between “institutional” rights and “background” norms).
4
See infra Part II.
5
Constitution of the Republic of South Africa, Act 108 of 1996, §26.
6
See id. §§ 2, 8(1), 38, 172(1).
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7
See infra Part IV.
8
See Cass R. Sunstein, Social and Economic Rights? Lessons from South Africa, 11 CONSTITUTIONAL FORUM
123 (2001). For recent supporting evidence (received as this goes to press), see Minister of Health v.
Treatment Action Campaign (Unreported, South African Constitutional Court, July 5, 2002), available
at http://www.concourt.gov.za/cases/2002/tacsum.shtml. See also the exchange in South Africa
between Etienne Mureinik and Dennis Davis. Etienne Mureinik, Beyond a Charter of Luxuries: Economic
Rights in the Constitution (1992) 8 SAJHR 464; Dennis M. Davis, The Case Against the Inclusion of Socio-
economic Demands in a Bill of Rights Except as Directive Principles (1992) 8 SAJHR 475.
9
See infra Part 2.
10
See infra Parts 3 and 4.
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16 F. I. Michelman
remain, even for those who are persuaded morally of reasons to go ahead and
fear no resulting evil of judicial overreaching. These are, first, a democratic
objection (as I shall call it) to the effect that adding social rights to the constitu-
tion constricts democracy unduly, regardless of judicial involvement in the
enforcement of such rights; and, second, a contractarian objection to the effect
that adding social rights to the constitution defeats a crucial function of the
constitution-as-law, that of providing legitimacy to the coercive political and
legal orders. Having put those two possible further objections on the table,
I shall suggest that (1) their force may vary with how sweepingly—or,
conversely, specifically—the constitutional social rights guarantees are
couched; (2) the contractarian objection is manageable even with a maximally
sweeping constitutional guarantee, or at any rate political liberals cannot deny
that it is while upholding in general the practice of constitutionalism; and (3)
the democratic objection is grave only if we choose a normative conception of
democracy that is not the only one available to us, or the best one.
11
See Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution
of the Republic of South Africa, 1996 (4) SA 744 (CC), ¶78; STEPHEN HOLMES & CASS R. SUNSTEIN,
THE COST OF RIGHTS: WHY LIBERTY DEPENDS ON TAXES (W. W. Norton & Company 1999); Frank I.
Michelman, Welfare Rights in a Constitutional Democracy, 1979 WASH. U. L.Q. 659 [hereinafter
Welfare Rights]; Frank I. Michelman, Foreword: On Protecting the Poor through the Fourteenth
Amendment, 83 HARV. L. REV. 7, 17–18, 25–26 (1969).
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12
See In re Certification of the Constitution, 1996 (4) SA at 801. See generally Welfare Rights, supra
note 11, at 660–64, 686–93.
13
See supra note 5; Government of Republic of South Africa v. Grootboom, 2001 (1) SA 46 (CC),
¶ 34 (“Although [section 26(1)] does not expressly say so, there is, at the very least, a negative
obligation placed upon the state and all other entities and persons to desist from preventing or
impairing the right of access to adequate housing.”).
In Minister of Health, supra note 8, the government had refused, for the time being, to supply an
antiretroviral drug, navirapine, to all of the country’s public hospitals and clinics where attending
physicians might dispense it in appropriate circumstances to women about to give birth and their
newborns, despite (1) the drug’s having been approved as safe through the normal South African
governmental channels, (2) its efficacy in reducing mother-to-child transmission of HIV/AIDS even
when administered without ancillary precautions by a simple, nonintrusive means, and (3) the sup-
plier’s standing offer of an unlimited supply to the government, free of charge. In holding this refusal
unreasonable, hence unconstitutional, the Court at some points seemed to regard it as tantamount
to a state-imposed prohibition—an active interference by the state with the freedom of physicians
and their patients to make use of navirapine—while at other points regarding it as a failure by the
government to take reasonable positive “measures within available resources,” as required by the
Constitution of the Republic of South Africa, supra note 5, § 27(2), to secure everyone’s right of
“access to health care” guaranteed by § 27(1)(a). See, e.g., Minister of Health, supra, at ¶¶ 46, 135.
14
2001 (3) SA 1151 (CC).
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18 F. I. Michelman
the interests of others, and agreed further that no act of parliament answered
the need in this instance. The Court, however, denied the plaintiffs the relief
they sought. In effect, it found authorization for the government’s action in
section 26 of the Constitution, as construed in Government of Republic of South
Africa v. Grootboom15 to place the government under a duty to make reasonable
provision within its housing plans for short-term aid to persons blamelessly in
conditions of housing crisis. “The government,” wrote the Court in Kyalami,
“contends that these obligations require it to come to the assistance of the
victims of the flooding throughout the country, . . . and that in doing so it
cannot be said to be acting contrary to the rule of law.”16
The Court apparently agreed. Like other owners of land, the Court reasoned,
the government has in general the right to erect buildings on land it owns. Alone,
that general property-owners’ right cannot satisfy the rule-of-law demand for
positive legal authorization for government action that trenches upon others’
interests, but the Court found that it can in combination with section 26 of the
Constitution as construed in Grootboom. If the government asserts its property-
owner’s building right “within the framework of the Constitution and the restric-
tions of any relevant legislation,” the Court concluded, “it acts lawfully.”17
15
2002 (1) SA 46 (CC)
16
2001 (3) SA at ¶ 39.
17
Id. at ¶ 40.
18
Lawrence Sager, most prominently among American constitutional legal scholars, has
explained at length the reasons for taking this combination of positions. See Lawrence Sager,
The Domain of Constitutional Justice, in CONSTITUTIONALISM: PHILOSOPHICAL FOUNDATIONS 235 (Larry
Alexander eds., Cambridge Univ. Press 1998), Lawrence Sager, Justice in Plain Clothes: Reflections on
the Thinness of Constitutional Law, 88 NW. U. L. REV. 410 (1993).
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19
It plainly is not what we have always believed. See Christine A. Desan, Contesting the Character of
the Political Economy in the Early Republic: Rights and Remedies in Chisolm v. Georgia, in THE HOUSE
AND SENATE IN THE 1790S: PETITIONING, LOBBYING, AND INSTITUTIONAL DEVELOPMENT 178 (Kenneth R.
Bowling & Donald R. Kennon eds., Ohio Univ. Press 2002) (describing the strictly legislative remedy
for contract claims against the state in the early Republic).
20
Bates v. Dir. of Campaign & Political Fin., 763 N.E.2d 6 (Mass. 2002).
21
MASS. CONST. amend. art. XLVIII, § 2.
22
The Massachusetts Clean Elections Law, Mass. Gen. Laws Ann. ch. 55A (West Supp. 2001).
23
Id. §§ 1, 7.
24
See MASS. CONST. AMEND. ART. LXIII (setting procedures for the annual budget and appropriations).
The Massachusetts Constitution expressly prohibits any “issuance” of “money” out of the state’s
“treasury” except under warrant from the executive branch drawn “agreeably to the acts and
resolves of the general court [i.e., the state legislature].” MASS. CONST. PT. 2, C. II, § 1, ART. XI. Final
resolution of the Bates case, which has not yet occurred as this goes to press, appears likely to carry
some lessons regarding the scope of this prohibition. See Memorandum of Decision and Order on
Plaintiffs’ Motion for Relief (March 12, 2002); Memorandum of Decision and Order on Plaintiffs’
Emergency Motion for a Levy on Property of the Commonwealth (April 5, 2002), both available at
http://www.nvri.org/library/index.shtml#Massclean. See also infra note 33, and accompanying text.
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20 F. I. Michelman
Despite an obvious strong dislike of the Clean Elections Law on the part of
most of its members and leaders, the legislature had trouble mustering the
super-majority of open votes against it to sustain a repeal over a promised
gubernatorial veto. The statute thus remained on the books as Massachusetts
politicians worked their way deep into the state election cycle of 2001–02. The
legislature also, however, refused (or at any rate failed) to appropriate funds to
meet the payment obligations that were beginning to accrue according to the
terms of the law.
Various plaintiffs sued for a mandatory injunction to the director to make
the distributions the law provides for—leaving open, however, the question of
how the director might manage to comply in the absence of any covering
appropriation.25 The plaintiffs included Warren Tolman, a candidate for the
office of Governor who had applied for and received the director’s certification
of compliance with the law’s prerequisites for an initial collection of money.
The case quickly reached the Supreme Judicial Court of Massachusetts.
Speaking through Chief Justice Margaret Marshall, the Court’s majority
had little difficulty concluding that the legislature, having not repealed the
Clean Elections Law, stood in breach of a clear constitutional and legal man-
date to enact statutes making sufficient appropriations from the state treasury
to fund the payments that the director is required by the law to make to quali-
fied candidates.26 But appropriation there was none, and that lack precluded
any injunctive order to the director to pay: “Because the director currently has
no clean elections funds to distribute and no authority on his own to reach
those funds, he cannot be ordered to distribute them.”27 The Court refrained
from any suggestion that a mandatory judicial remedy might lie against the
legislature to make the requisite appropriation. Whether the Court thus for-
bore because the plaintiffs had not dared to request such a remedy, or because
it read the Constitution expressly to preclude it,28 or because it believed such a
remedy would abrogate an unwritten rule of separation of powers, one cannot
definitely say.
The case might have ended just there, had the plaintiffs had naught but
public law—the direct commands of article 48—with which to back their
claims of entitlement to be paid out of Commonwealth assets. Having per-
formed its “ ‘imperative duty’ to say what the Constitution requires,”29 and
having accordingly affirmed the legislature’s constitutional-legal obligation to
25
If you were the state’s ministerial officer to whom the director issued his warrant to pay, would
you write the check? If the check were written on a state-owned account in your bank, would you
honor it?
26
763 N.E. 2d at 23–24.
27
Id. at 28.
28
See supra note 24.
29
763 N.E. 2d at 24.
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raise and appropriate clean-election funds,30 it seems that the Court—but for its
detection of the private-law claim soon to be described—might have left the rest
to the legislature acting under the gaze of the voters, adding its own vote of con-
fidence in the legislature’s law-abidingness.31 A court’s thus leaving to politicians
and voters the implementation, or “enforcement,” of a legal obligation would
have been unusual in our times, but so is the case unusual. On the Supreme
Judicial Court’s own advice, ubi ius, ibi remedium is not an exceptionless maxim;32
conversely, an obligation laid down by positive legislation would not cease to be a
legal one just because breaches are found to be judicially nonremediable.
As matters finally turned out, one of the plaintiffs—Tolman—was awarded
a judgment against the director, satisfiable by execution levy against tangible
assets of the Commonwealth, but so far not including treasury cash.33 That
judgment was not, however, imposed in respect of any breach—although the
Court found a grave one—of a public-law obligation imposed directly by
article 48. Rather, it was based on a private-law claim of, roughly, unilateral
bargain-contract or promissory estoppel, arising out of certain “affirmative
actions” taken by the director, by which he induced changes in position by
candidates, detrimental to them and beneficial to the Commonwealth.34
The clean-elections controversy in Massachusetts may thus in fact directly
instance the class of positive enactments found by a court to raise obligations
of law, which nevertheless defy judicial enforcement. That is exactly how the
Supreme Judicial Court treated the plaintiffs’ claims of obligations in their
favor imposed directly by public law (article 48)—those being primarily
the legislature’s obligation to raise and appropriate funds and secondarily the
director’s obligation, hinging on the legislature’s, to pay specified sums of
money to certified candidates out of funds appropriated for the purpose.
30
Id. at 29.
31
Id. But compare the very different view of the legislature’s posture in Memorandum of Decision
and Order on Plaintiffs’ Emergency Motion for a Levy on Property of the Commonwealth, supra
note 24.
32
See id. at 24. (“Not every violation of a legal right gives rise to a judicial remedy.”)
33
See Memorandum of Decision and Order on Plaintiffs’ Motion for Further Relief, supra note 24.
The plaintiffs have appealed to the full Court from this order of a single justice denying access to
treasury cash. Their brief is available at http://www.nvri.org/library/index.shtml#Massclean.
34
763 N.E. 2d at 11. See id. at 24–26, 30–31. The Court’s private-law theory of candidates’ enti-
tlement is somewhat contentious because the state’s offer to pay qualifying candidates—assuming
that an “offer” to potential qualifiers is what it was, see, e.g., RESTATEMENT (SECOND) OF CONTRACTS
§ 24 (1981) (characterizing an offer as “a manifestation of willingness to enter into a bargain, so
made as to justify another person in understanding that his assent to that bargain is invited and
will conclude it”)—was expressly made “subject to appropriation.” This fact would seem to bear on
both (i) whether all of the offer’s stated preconditions to liability had in any case been met and (ii)
the reasonableness of any candidate’s reliance during a time when, notoriously, there had as yet
been no appropriation. See 763 N.E.2d at 37–38 (Spina J., dissenting).
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22 F. I. Michelman
35
On the possibility of indirect modes of judicial vindication, see supra Part 2.
36
Cf CHARLES FRIED, RIGHT AND WRONG Ch. 5 (Harvard Univ. Press 1979).
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37
See FRANK I. MICHELMAN, BRENNAN AND DEMOCRACY 14–16, 31–33 (Princeton Univ. Press 1999).
38
JOHN RAWLS, POLITICAL LIBERALISM 217 (Columbia Univ. Press 1996) [hereinafter POLITICAL
LIBERALISM].
39
Id.
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24 F. I. Michelman
accepts the fact of deep and enduring conflicts of interests and ethical visions
within her society—what Rawls calls the fact of reasonable pluralism.40 Third,
she is imbued with the liberal spirit of reciprocal recognition by persons of
each other as individually free and equal. As a result, a reasonable person
stands ready to accept the laws as long as (a) she sees everyone else generally
supporting and complying with these laws, and (b) she sees how these laws are
ones that merit mutual acceptance by a competently reasoning group of per-
sons, all of whom desire, and suppose each other to desire, to devise and to
abide by laws reflecting fair terms of social cooperation in conditions of deep
and enduring but reasonable disagreement over questions of the good.41
But wait a minute. No matter how reasonable we ask each other to be,
surely none of us really expects that every discrete act of lawmaking could
pass a test of rational acceptability to every supposedly reasonable inhabitant
of a modern, plural society. Realistically, our hope is more modest, and
more procedural. It is that an aptly designed general system or regime for
lawmaking—or call it a constitution—might be able to pass such a test. Maybe
we can imagine some such regime, about which we’d be prepared to say that it
ought to be found acceptable, as a regime, by every rational person who is also
reasonable. If so, then we might further maintain that the rational acceptabil-
ity to you, as reasonable, of the constitutional regime commits you to accept-
ance of whatever specific laws may issue from the regime.42 That, after all, is
the apparent point of Rawls’s claim, in his “liberal principle of legitimacy,”
that exercises of political coercion are justifiable insofar as they issue from
“a constitution, the essentials of which all citizens may be expected to endorse.”
In effect, we have arrived at the idea of a sufficient, legitimating constitutional
agreement.43 Four terms compose this idea, as follows.
First, what is supposed to be “legitimated” (in the sense of justified morally)
by this agreement is some specific practice of positive legal ordering—of the
coercive exercise of collective power, through lawmaking, by and among
citizens considered as individually free and equal.
40
See id. at 36–37.
41
See id. at xliv, xlvi, 226–27; See also John Rawls, The Idea of Public Reason Revisited, in COLLECTED
PAPERS 573, 576–79, 581, 605–06 (Samuel Freeman ed., Harvard Univ. Press 1999).
42
See Samuel Freeman, Original Meaning, Democratic Interpretation, and the Constitution, 21 PHIL.
AND PUB. AFF. 3, 26, 36, cited with approval in POLITICAL LIBERALISM, supra note 38 at 234 n. 20;
Cf. JOHN RAWLS, A THEORY OF JUSTICE 195–201 (Harvard Univ. Press 1993) (on the “four-stage
sequence”). This means that your finding particular ordinary laws unjust gives you no ground for
resort to unlawful force, not that it gives you no ground for denunciation, civil disobedience, or
conscientious refusal.
43
I develop and examine this idea at greater length in Frank I. Michelman, The Problem of
Constitutional Interpretive Disagreement: Can “Discourses of Application” Help? in HABERMAS AND
PRAGMATISM 113 (Mitchell Aboulafia, Myra Bookman & Catherine Kemp eds., Routledge Press
2002).
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44
For Rawls’s discussion of “constitutional essentials,” see POLITICAL LIBERALISM, supra note 38, at
227–30.
45
The argument can be cast as well in parallel terms of membership, commitment, and identity.
See William E. Forbath, Constitutional Welfare Rights: A History Critique and Reconstruction, 69
FORDHAM L. REV. 1821, 1875–76 (2001) [hereinafter Constitutional Welfare Rights].
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26 F. I. Michelman
46
Id. at 1821–91; William E. Forbath, Caste, Class, and Equal Citizenship, 98 MICH. L. REV. 1 (1999).
47
See, e.g., Constitutional Welfare Rights, supra note 45, at 1875–77.
48
Id. at 1824, 1833–35.
49
Id. at 1826, 1876.
50
Id. at 1854, 1871–72.
51
Following my cue, Forbath has called it a welfare right pure and simple. See id. at 1880.
However, we both may have spoken too soon. A right “to have access to adequate housing” might
plausibly be deemed fulfilled for anyone to whom work is available on fair terms, including pay
sufficient for procurement of adequate housing that is reasonably available and suitable.
Cf Grootboom, 2001 (1) SA 46 (CC), ¶¶ 36–37. (“For those who can afford to pay for adequate
housing, the state’s primary obligation lies in unlocking the system, providing access to housing
stock and a legislative framework to facilitate self-built houses through planning laws and access
to finance.”)
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52
Accord, Minister of Health, supra note 8, at ¶ 38. See SUNSTEIN, supra note 8; Mureinik, supra note
8 (anticipating the Court’s focus on “reason” as a justiciable standard of review). See also Frank I.
Michelman, The Constitution, Social Rights and Reason: A Tribute to Etienne Mureinik, (1998) 8
SAJHR 499, 500–1.
53
See R.A.V. v. City of St. Paul, 505 U.S. 377 (1992); American Booksellers v. Hudnut, 771 F.2d
233 (7th Cir. 1985), aff ’d, 475 U.S. 1001 (1986).
54
See Boy Scouts of America v. Dale, 530 U.S. 640 (2000).
55
See, e.g., Buckley v. Valeo, 424 U.S. 1 (1976).
56
See, e.g., Hustler Magazine v. Falwell, 485 U.S. 46 (1988). See generally Paul D. Carrington, Our
Imperial First Amendment, 34 U. RICH. L. REV. 1167 (2001).
57
Forbath, supra note 46, at 49.
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28 F. I. Michelman
58
See, e.g., Planned Parenthood v. Casey, 505 U.S. 833, 927–28 (1992) (Blackmun, J., concurring
in the judgment in part, and dissenting in part) (“The decision to terminate or continue a preg-
nancy has no less an impact on a woman’s life than decisions about contraception or marriage.
Because motherhood has a dramatic impact on a woman’s educational prospects, employment
opportunities, and self-determination, restrictive abortion laws deprive her of basic control over
her life. For these reasons, ‘the decision whether or not to beget or bear a child’ lies at ‘the very
heart of this cluster of constitutionally protected choices’ ”) (citation omitted).
59
See supra Part 3.
60
See generally MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (Princeton Univ. Press
1999).
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61
Constitutional Welfare Rights, supra note 45, makes a stirring and persuasive case for the moral
superiority of the social-citizenship conception.
62
See Richard A. Epstein, Takings, Exclusivity and Speech: The Legacy of PruneYard v Robins, 64 U.
CHI. L. REV. 21, 21–28 (1997); Cf. Lucas v. South Carolina Coastal Comm’n, 505 U.S. 1003,
1029–30 (1992) (Scalia, J.) (making actionability under prior “background law,” of the uses of
property prohibited by a new regulatory enactment, the test of the state’s duty to pay compensa-
tion as if for a “taking” of property).
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30 F. I. Michelman
63
See supra Part 4.
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job training, reduced the minimum wage by one-third, extended the collective
bargaining laws to cover employers of as few as ten workers, abolished rent
control, budgeted an annual sum of 30 billion crowns for housing allowances
and job training, increased income tax rates by five percent, reduced the prime
lending rate by two percentage points, doubled the size of the employment
discrimination mediation corps, and approved a new tariff schedule somewhat
less protective than its predecessor, in exchange for reciprocal concessions
from abroad. Are they complying with clause Z?
Raging indeterminacy of this sort seems to disqualify a clause like Z from
figuring as a required component in a complete and legitimating constitu-
tional agreement. Remember how the constitutional-contractarian argument
goes. I can freely accept the daily run of coercive acts from a constituted polit-
ical regime, including acts I judge to be pernicious or unjust, because and only
because (1) I regard this regime qua regime as rationally acceptable by every-
one who is being reasonable, and (2) I see my fellow citizens and their government
abiding by this regime. In order for the regime to merit my willing compliance,
one of the conditions is that I can know at all times that the commitments that
make it universally reasonably and rationally acceptable are actual, not fake.
I have to be able to observe my fellow citizens and their government really
complying with the principles. And how can I, if Z is one of the principles? Just
because I can’t, it seems that Z cannot be deemed an indispensable part of any
constitution meant to do the political-justificatory work that constitutions
morally have to do, in a constitutional contractarian view.
And there, then, you have the contractarian objection to the idea that social
rights belong in a constitutional bill of rights. Because social rights lack the
trait of transparency, as we may call it—the trait of more-or-less detectably
being realized (or not) at any given moment—we seem barred from regarding
them as required parts of the essential constitution, lacking which the consti-
tution would fail to meet the political-liberal standard for legitimacy; lacking
which, in other words, the constitution would fail to provide an acceptable
basis for political rule, in the sight of every rational person responding reason-
ably.64 (And then what would be the affirmative case for constitutionalization
of social rights guarantees?)
64
A consideration of this kind may have entered into John Rawls’ own conclusion that social-
rights guarantees are not among the “constitutional essentials.” See POLITICAL LIBERALISM, supra
note 38, at 227–30; Frank I. Michelman, Rawls on Constitutionalism and Constitutional Law, in THE
CAMBRIDGE COMPANION TO JOHN RAWLS (Samuel Freeman ed.) (forthcoming 2002).
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32 F. I. Michelman
answer—to the question of political legitimacy. It may, after all, be true that a
constitutional system without a social-citizenship guarantee—by which
I mean a credible guarantee of constant, good faith pursuit by the powers that
be of assurance of the prerequisites to social citizenship to all who seek them
on fair terms—fails to provide every rational and reasonable person with
sufficient reason to accept whatever specific laws may issue out of the system
from time to time. Believing exactly that, political liberals are not free just to
shuck the belief if it happens to become theoretically inconvenient.65 How,
then, can a political regime possibly, in their sight, be legitimate?
A regime, they believe, is not legitimate if its basic law does include a social
rights guarantee, but it also is not legitimate if any of its basic-law guarantees,
required for legitimacy, are such that citizens cannot judge whether those guar-
antees in fact are being kept, or at least at all times being pursued in good faith.
If a social-citizenship guarantee fails the latter test, then, by constitutional con-
tractarian lights, it cannot form an indispensable part of a sufficient, legitimat-
ing constitutional agreement—and yet it does. That looks like a contradiction.
If so, the constitutional contractarian theory of political justification through a
complete, legitimating constitutional agreement must be a mistaken theory of
political justification. If it is mistaken, and if there is in sight no other liberally
acceptable theory of political justification for modern, plural, law-governed
societies, then, for liberals concerned with such societies, political justice appar-
ently lies beyond the possibility of coherent definition, let alone achievement.66
Rawlsian thought offers a way out of this bind. We see it in proposals to give
social rights a constitutional status of “directive principles” rather than
“rights,” as well as in John Rawls’ ideas about what he calls public reason and
“matters of basic justice.” The point for Rawls is this: A sufficient, legitimating
constitutional agreement has to provide fully firm, strict, and reliable substant-
ive guarantees of compliance with what he calls the central ranges of the basic
negative liberties—freedoms of conscience and expression, for example.
Regarding the rest of social citizenship, the requirement is a looser one. What
we need, and all we need, is assurance that, whenever political and legislative
choices bear upon the basic structural conditions of social citizenship, those
choices will be approached by all who take part in them under what Rawls calls
a constraint of public reason. Participants in such decisions must stand ready
65
John Rawls would classify such a guarantee as a “matter of basic justice,” covered by a “con-
straint of public reason,” but not as a “constitutional essential.” See POLITICAL LIBERALISM, supra
note 38, at 216–20, 223–27; Michelman, supra note 64.
66
The problem may well be graver than my text discloses. The bind I have described is not clearly
restricted to social-rights guarantees, but rather may extend to all the “basic liberties,” all the
members of the standard list of constitutional negative liberties. See Frank I. Michelman,
Postmodernism, Proceduralism, and Constitutional Justice: A Comment on van der Walt & Botha,
CONSTELLATIONS Vol. 9, Issue 2, 246, 256–59 (2002); Frank I. Michelman, Relative Constraint and
Public Reason: What Is “The Work We Expect of Law?” BROOK. L. REV. (forthcoming).
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67
See supra text accompanying notes 41–44.
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34 F. I. Michelman
This provision, while it may leave some room for good-faith dispute around the
edges, over exactly which conduct is and is not “actionable at common law,”
really leaves—surely it is intended to leave—an honest parliamentarian with
very little to decide in the way of regulatory law. By contrast, a constitution-
ally declared right of everyone to the enjoyment of social citizenship would
leave just about every major issue of public policy still to be decided. Its maxi-
mum (but maybe not trivial) effect on democratic decisionmaking (the courts
being kept away) would be a certain pressure on the frame of mind in which
citizens and their elected representatives would approach the sundry questions
of public policy always waiting to be decided. In Rawlsian language, the point
of naming social citizenship a constitutional right would be to give a certain
inflection to political public reason. Across a very broad swathe of public
issues, such a naming would amount to a demand that those issues be
approached as occasions for exercises of judgment—which choice will be con-
ducive to the social citizenship of everyone, on fair terms?—rather than as
invitations to press and to vote one’s own naked interests and preferences.
Of course, to call these matters of judgment is to see that they are matters
on which opinions can and will differ markedly, reasonably, and sincerely, and
very probably not independently of people’s particular social situations and
related interests. (In today’s United States, factory workers doubtless will tend
on average to see some of them differently than bond traders will, young
mothers differently from senior corporate personnel managers, blacks from
whites, etc.) But surely no harm to democracy lies there. Why should not dis-
agreements over constitutional-interpretive judgment make as good a seedbed
for democracy, or better, than do raw conflicts of interest and preference?
“Democracy,” then, would name the practice by which citizens communicat-
ively form, test, exchange, revise, and pool their constitutional-interpretive
judgments, only counting them as required to obtain, from time to time, the
“institutional settlements” a country needs in order to get on with the tolera-
bly orderly conduct of life.68
Granted, that is a pretty idealistic view of what democracy is and how it
works. I’m sure it is a minority view, too, by comparison with the view that
democracy means, quite strictly, that a country’s people are free to treat their
political agenda as a series of free-for-all contests of normatively unregulated
preferences. On it, however, seems to depend the idea of liberal justice or liberal
legitimacy within any possible system of positive legal ordering.
68
See Amy Gutmann & Dennis Thompson, Deliberative Democracy Beyond Process, 10 J. POL. PHIL.
153, 165–69 (2002); Frank I. Michelman, Why Voting? 34 LOY. L.A. L. REV. 985, 1001–04 (2001).
On “the principle of institutional settlement,” see HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL
PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW 1–9 (William N. Eskridge, Jr. & Philip
P. Frickey eds., The Foundation Press, Inc. 1994).