A Reply to Baker and Balkin

constitutional rights ("the freedom of speech" or "equal protection of the laws," for examples) have been given a correct, concrete application (say, in this most recent interpretation of the constitution's requirements and prohibitions respecting laws regulating political campaign finance). Baker says that if those who collectively hold effective power sincerely and considerately judge the answers to be yes, they are morally justified in coercing the dissident. 9 Rawlsians and other Kantians would agree wholeheartedly. 30 A question that remains is whether there may be cases in which, so judging, both Habermasians and Rawlsians also would judge the dissenting views to be ones that could be held, competently and sincerely, by persons trying just as hard as they are to frame constitutional interpretations and applications in terms that are (let us say, adopting the Habermasian formulation) acceptable to all from the standpoint of each.31 If so-and Baker does not appear to be denying this possibility3 2 -then it seems to me that the goods, inescapably, are damaged; I shall say a bit more about this below. But let me be clear about what point I think I have made so far. It is not that Baker, finally, adheres to a constitution-as-contract view. In fact, as we are about to document, he outspokenly does not. My point so far is merely that a decidedly communicative-ethical take on normative individualism is no less susceptible than is a Rawlsian-Kantian take to the blandishments of constitution-as-contract (however else we may think the two takes differ, a matter as to which I confess deep confusion and uncertainty). Regarding the choice between constitution-ascontract and whatever alternative to that approach may arguably be preferable from the standpoint of normative individualism, communicative ethics and Rawlsian-Kantian contractualism stand on the same footing. That is the burden of my argument so far. Baker urges the rejection, or at least the skeptical reconsideration, of constitution-as-contract. Maybe, he suggests, legitimacy is not necessarily, or even appropriately, tied to judgments of the consistency of ordinary-level lawmaking with "determinate terms of a universally acceptable constitutional contract., 33 Perhaps, instead, "legitimacy involves a constantly raisable discourse of legitimacy. 3 4 This could be a discourse that looks both backward in time to 29. See e.g. Baker, supra n. 1, at 535 ("[N]othing... requires that this judgmental authority be denied either to individual dissenters, to the majority, or to the governing institutions charged with enforcing its understanding of the law."). 30. See Rawls, supra n. 5, at 247 ("[W]e can maintain that the political conception is a reasonable expression of the political values of public reason and justice between citizens seen as free and equal. As such the political conception makes a claim on comprehensive doctrines in the name of those fundamental values, so that those who reject it run the risk of being unjust, politically speaking.... If we do so insist, others in self-defense can oppose us as using upon them unreasonable force."). 31. See JUrgen Habermas, A Genealogical Analysis of the Cognitive Content of Morality, in The Inclusion of the Other: Studies in Political Theory 3, 31 (Ciaran Cronin & Pablo De Greiff eds., MIT Press 1998). 32. See Baker, supra n. 1, at 531. 33. Id. at 523. 34. Id. [Vol. 39:649 6 Tulsa Law Review, Vol. 39 [2003], Iss. 3, Art. 9 http://digitalcommons.law.utulsa.edu/tlr/vol39/iss3/9 A REPLY TO BAKER AND BALKIN achieved results and forward to expected further consequences. 35 In any case, the discourse would not pin legitimacy judgments tightly to judgments of compliance with "any pre-existing (actual or assumed) contract. 3 6 The question of legitimacy would never be resolvable simply by application of any "set of particular legal constitutional rules []or by a fully elaborated procedure or process[]."37 "Rather, the inquiry is always open[, as well as] always related to... what is done now. 3 8 An advantage claimed by Baker for this contract-independent, presentist approach (as we may call it) is that it sidelines the worry about reasonable indeterminacy in the application of abstractly formulated, constitutional-legal requirements. Given an understanding of legitimacy as... an issue not looking for or purportedly solved by the existence of a contract with uncontroversially right content, the problem of determinacy takes on a different hue. Lack of determinacy of rules, even constitutional rules, would not play the same crucial role of undermining legitimacy as it did in the interpretation of constitutional contractualism [what I have chosen here to call "constitution-as-contract"] elaborated by Michelman .... [E]ven if in conflict, different views about "what should currently be done" are presumably relatively determinate-can be argued over-in contrast to the inherent indeterminacy of what some past linguistic act says about a then unenvisioned future. 39 My own thoughts currently run in a like direction. 4° What remain to mention are a couple of quibbles. The first quibble pertains to what I take to be a further point of agreement between Baker and myself. Baker and I agree that the suggestion to dispense with constitution-ascontract does not amount to a suggestion that constitutionalism is irrelevant to legitimacy-meaning by "constitutionalism" the practice of writing certain constraints on the content of democratic lawmaking into a body of supreme law, which an independent judiciary (perhaps) is expected then to apply decisively to controverted cases, sometimes against the duly expressed will and judgment of popularly elected branches of government. Why does it not? I have explained as follows: You could start with the ... idea that the "system" or "practice" of government whose respect-worthiness you want to gauge consists of the entire aggregate of concrete political and legal institutions, practices, laws, and legal interpretations 35. Results and consequences of what, exactly? See infra text accompanying and following n. 49. 36. Baker, supra n. 1, at 523. 37. Id. at 525. 38. Id. 39. Id. at 524. 40. See my writings cited supra note 9, especially Michelman, Ida's Way, supra n. 9, at 347-48 ("Looking out at [the] governmental totality, one might ask oneself how various classes or groups of persons are faring, and maybe how they would perceive matters from their own situations and standpoints. One would apply whatever standards of freedom, justice, prosperity, distribution, participation, and systemic openness to change one considers to be applicable. Finally, one would judge whether the total performance is good enough, on the whole, to be accepted considering the practical, imaginable alternatives."). 2004] 7 Michelman: A Reply to Baker and Balkin Published by TU Law Digital Commons, 2003