The Second Coming of Political Liberalism

Introduction

The constitutional settlement of the United States is coming undone at the seams. The U.S. Supreme Court is on a crusade to revisit basic legal doctrines and to undo core constitutional protections.¹ Its interventions have created an interregnum to which conservatives and progressives are responding with projects that reflect a sense of rare opportunity — or supreme threat. Within the former camp, emboldened voices are seeking to move past originalism, whose positivist attachments to original text — or original law² — ill position it to support feistily antiliberal projects.³ Such projects require the state to legislate morality through the implementation of a constitution that, in this interpretation, endorses a transcendental conception of the common good.⁴ In their turn, progressives strive to unbind constitutionalism from (neo)liberal accounts.⁵ Seeking a return to democracy’s radical promise, they too urge the pursuit of an openly substantive, albeit egalitarian and differently institutionalized, vision of the common good.⁶ An uncompromising ethos is infiltrating the capillaries of our constitutional order. Both camps are searching for winning strategies, and fast. Emphatically not included among such strategies are painstaking justification, finely tuned procedures, an ethic of reciprocity, and other virtues of moderation.⁷

In this age of constitutional extremes, when our politics have come to resemble “a form of war,”⁸ a return to Professor John Rawls’s Political Liberalism⁹ seems at the very least mistimed. Instead of providing ammunition, Rawls redirects attention toward different kinds of questions about how a democratic society can gain the “freely willing submission by dissenters to the coercions of [its] ordinary law” (p. 129). His answers seem mollifying in effect. Rawls claims that agreement on any comprehensive view of justice, including his own deeply influential A Theory of Justice,¹⁰ cannot form the basis of our politics. In a democratic society characterized by the fact of reasonable pluralism — a fact that Rawls insists “is not an unfortunate condition of human life”¹¹ — any such agreement would mask “the fact of oppression.”¹²

Striking as this might be, even more remarkable for its contrast to the tenor of our moment is Rawls’s seemingly reassuring, almost celebratory take on liberal democracy. Notice the phrasing of Political Liberalism’s central question: “How is it possible for there to exist over time a just and stable society of free and equal citizens who remain profoundly divided by reasonable religious, philosophical, and moral doctrines?”¹³ That is one loaded question. Not only does it assume that stability (“for the right reasons”¹⁴) is possible under conditions of reasonable pluralism, but, even more strikingly, it posits that we — the conflict-ridden and self-doubting political community that we know ourselves to be — already have the answer to that deep riddle. Here is Rawls’s version of that answer, the liberal principle of legitimacy: “[O]ur exercise of political power is proper and hence justifiable only when it is exercised in accordance with a constitution the essentials of which all citizens may reasonably be expected to endorse in the light of principles and ideals acceptable to them as reasonable and rational.”¹⁵ Unable to share in a comprehensive view of justice,¹⁶ we can live together as free and equal citizens through agreement on the terms of legitimate law.¹⁷ The constitution is, in Rawls’s view,¹⁸ our solution to the problem of just stability under conditions of reasonable pluralism. One can be forgiven for harboring some doubt about this understanding of our public life. If anything, it seems that our constitutional debates epitomize and amplify our conflicts.¹⁹ If the Constitution is our anchor, no wonder we feel adrift. How surprising, then, can it be that Political Liberalism, published a mere three decades ago, seems to speak to us with as faint an echo as the works of Bentham, Mill, and other eighteenth- and nineteenth-century classics of liberal thought.

Or so it does until one reads Professor Frank Michelman’s Constitutional Essentials: On the Constitutional Theory of Political Liberalism. In this wise, probing, and, yes, timely book, Michelman offers the sedimented result of decades-long engagement with Rawlsian thought and a lifetime of reflection as one of the leading thinkers of American constitutionalism in the past half century. Approaching Rawls as a “critically leavened (while no doubt broadly sympathetic)” reader (p. 1), he ponders, distills, reformulates, and explains “how Rawls thinks — . . . what is involved in his thinking” (p. 91). Michelman’s Rawls exudes no glee or transports of enthusiasm — and neither does Michelman himself. A still yet palpable disquiet pervades Constitutional Essentials.²⁰ What if the bonds binding “legitimacy to constitutionalism” (p. 3) tear too easily? What if the Constitution, our “seaworthy ship,”²¹ (p. 22) will not survive the angry political storms of the age? What if the equilibrium that keeps a democratic society both from thickening into a community and from fragmenting into an association breaks down too easily under pressure?²² These questions are sobering — indeed “torturing,”²³ as Rawls once put it.

A lesser thinker than Rawls might have given in to such concerns and relaxed some of political liberalism’s stringent assumptions. Perhaps, after all, reasonable pluralism is compatible with a thickening of the ties of membership, or perhaps constitutional proceduralization need not go all the way, or perhaps the scope of democratic politics can be restricted, every now and then, for the sake of expedience. Michelman shows how Rawls’s careful reflection on the liberal principle of legitimacy resists the temptation of such compromises. When the outcome is uncertain, Michelman draws on law’s synergies to help Rawls’s philosophical conception along. Constitutional Essentials is more than the application of a set political-philosophical conception to constitutional jurisprudence. That philosophical conception itself remains in flux, an “unfinished project”²⁴ in need of elaboration. Constitutional Essentials should instead be read as a permanent affixture to Political Liberalism and a fundamental contribution to the canon of liberal constitutional thought.

This complex task gives Constitutional Essentials a rather unusual shape. Michelman thinks with Rawls,²⁵ in terms “internal to a Rawlsian guidance for the project of liberal constitutional democracy” (p. 89). When the analysis moves to legal debates, it orients itself toward law’s gains from Rawlsian political philosophy, and to that philosophy’s benefit from law. All along, its scope remains demarcated. With a few exceptions, this book does not include a “[d]efense of [Rawls’s] project against external dangers and threats now abroad in our world[, which] lies largely beyond the scope of [Constitutional Essentials]” (p. 89). Still, even within such limits, the task at hand is formidable. Other jurists have expressed misgivings about Rawls’s jurisprudence. One prominent legal theorist, for example, has accused Rawls of accepting the idea of courts — particularly in their capacity as reason-givers — “in its most naive and uncritical version.”²⁶ Rawls’s portrayal of the Supreme Court as an exemplar of public reason — the only form of reason it delivers, he argues²⁷ — stretches credulity at a time when judicial review is the bane of our politics.²⁸ And if one reads Political Liberalism to argue that bedrock constitutional structures are fair and by and large set, the jurist’s experience reveals them as “essentially unsettled”²⁹ and shot through with structural biases.³⁰

This orientation of the argument and high stakes lace Michelman’s study of Rawls with absorbing paradoxes. Constitutional Essentials presents an account self-avowedly institutional that largely eludes constitutional structure; a model of constitutional justification seemingly compatible with constitutional faith; a substantive, essentializing constitutional conception whose role is procedural through and through; a theory of rights and liberties across liberal democracies disengaged from transnational or international law. Far from flaws of theory construction, these paradoxes reflect deep tensions — between will and reason, history and philosophy, constitutionalism and democratic self-rule, law and power — that continue to shape liberal constitutional thought, circa the 2020s. Perhaps no constitutional eschatology, and I use that word advisedly, can fully resolve these tensions. A superior form of reconciliation might be the best we can hope for — from philosophy and from law.

Part I of this Review studies two forces, regulation and justification, that Constitutional Essentials identifies as shaping the constitutional cartography of a liberal democratic society. In addition to regulating, as all law does, political liberalism theorizes the constitution as a procedure for the justification of the use of political power.

Part II turns to the justificatory function, specifically its proceduralizing steps involving the move from justice to legitimacy and then constitutional validity. The context of analysis is Michelman’s assessment of changes he calls, somewhat understatedly, “non-negligible” (p. 12), to the liberal principle of legitimacy in Rawls’s later work. The first change is a shift from constitutional-procedural to ethical justification. The second is the extension of reasonable pluralism beyond comprehensive doctrines to the political conception itself. In a democratic society, Rawls comes to claim, there is not just one but a family of reasonable liberal political conceptions. This raises complications that this Part suggests might require additional formalization. Implicit in Rawls’s assertion that justice as fairness is “for a democratic society”³¹ lies an understanding of constitutional essentials as essentials of the democratic form of government.

Finally, Part III of this Review takes this understanding of constitutional essentials beyond the debates canvassed in Constitutional Essentials. The arguments more or less match the roles of constitutional theory with Rawls’s conception of the roles of political philosophy.³² The first role, practical, sees constitutional essentials as peremptory norms that mark the limit of tolerance with regard to permissible constitutional reform. The second role, reconciliation, combines substance and structure to ground constitutional rights in the form of government. The third role, orientation, sketches out some of the normative grounds of comparative constitutionalism in liberal political thought.

I.  The Functions of (Liberal) Constitutionalism

Michelman discusses the functions of liberal constitutionalism in the context of substantive constitutional law, understood as the constitutional subdomain involving rights and liberties as substantive limits on procedurally valid political acts. The tilt toward substance is understandable given the features of Rawlsian liberal constitutionalism. Constitutional Essentials is less though not entirely unconcerned with questions of constitutional structure involving institutional design and the internal organization of the state. But Michelman cautions against perceiving a bias in this tilt. He does not endorse the idea that “‘rights’ and ‘structures’ will always fall into cleanly separable piles” (p. 13). After introducing the regulatory and the justificatory functions — aims and missions are two other ways Michelman describes them³³ — this Part turns to their “problematic entanglement” (p. 8).

A.  The Regulatory Function

All laws, by design, regulate. They tax income, protect consumers, criminalize conduct, and issue countless other directives aimed at the conduct of subjects coming within their jurisdiction. Laws of constitutional rank regulate the conduct of government. These “advance-design effects on political outcomes” (p. 4) range from matters of institutional structure — the nature and structure of executive power, the mechanics of political representation and ordinary lawmaking, and other secondary rules ensuring effective functioning of government — to basic rights and liberties that, from the perspective of legislative majorities or government officials, are side constraints on the articulation and implementation of public policy. For instance, formidable as the pressure on the people’s duly elected representatives might be to ban certain political messages, a constitutional guarantee of free speech ensures that most limitations of political speech will be impermissible.³⁴ Thus, regulatory mandates of higher, constitutional law set the conditions of “intra-systemic validity”³⁵ of all infraconstitutional acts.

Regulation thus encases the directive and will of its authors. In a democracy, constitutional regulation reflects the will of the constituent power, which is — indeed, it can only be³⁶ — the people acting in their collective capacity. But how the people act varies. As Professor Edmund Morgan described Westminster constitutionalism: “The English people never, even fictionally, exercised their constituent power outside Parliament. They acted only through their representatives in the House of Commons.”³⁷ While it is possible in this system of parliamentary sovereignty to distinguish constitutional from infraconstitutional regulations, authorship alone cannot be the criterion for such distinctions.³⁸ Contrast this to constitutional systems where the people themselves are said to be authors of the higher law. If the constitution is law, that is, if its regulatory content has the same nature as that of all law,³⁹ then the constitution is, from this perspective, “supreme ordinary law.”⁴⁰ As Professor Edward Corwin pointed out, the idea of people as authors entails “an entirely new sort of [legal] validity, the validity of a statute emanating from the sovereign people.”⁴¹

On the We the People constitutional terrain, legitimate authority requires fidelity to the people’s sovereign will as fixed or made “explicit”⁴² through written text and its interstices. As Professor David Strauss astutely observes: “[O]ne of the absolute fixed points of our legal culture is that we cannot . . . say that the text of the Constitution doesn’t matter.”⁴³ To be sure, time and human nature will test this “linkage of predictive hope to semantic confidence” (p. 4). The greater the time lag between constitution-making and the moment of application, the heavier will likely have to be the reliance on hope. Nor is constitutional decoding almost ever straightforward. “We must spread the gospel,” Justice Cardozo related, “that there is no gospel that will save us from the pain of choosing at every step.”⁴⁴ All constitutional theories, from originalism all the way to Dworkinian interpretivism and even pragmatism, propose solutions for directing the exercise of choice in the present toward a credible implementation of the mandates of constitutional authorship.

Some degree of translation is, of course, inevitable. As Professor Bernard Williams put it, even if one could play old music on old instruments, one could not hear it with old ears.⁴⁵ And even if one could, the message might not be to the interpreter’s liking. Constitutional mandates might turn out to be “arbitrary and even irrational.”⁴⁶ Michelman lists the equal suffrage of every state in the Senate irrespective of its population as one such “eccentricity.”⁴⁷ Rawls has his own pet peeves.⁴⁸ But, if the sole function of constitutional law is regulatory, these inadequacies matter not at all as a matter of law. For not only do the people themselves make fundamental law; but all the law they make is fundamental. Its pedigree stamps it as relationally “paramount”⁴⁹ to ordinary law. It is authorship, not content, that establishes constitutional authority. One can of course have hopes about content, but a constitutional theory reduced to its regulatory function is essentially content agnostic to the extent that evaluative criteria collapse completely on the footprint of jurisgenic authorship. Its model of constitutional authority is content independent. As Professor Martin Loughlin captures this view: “[R]ules did not find a place in the Constitution because they were fundamental; they were fundamental because they were incorporated into the Constitution.”⁵⁰ It seems that we dance, like it or not, to the tune of constitutional regulation.

B.  The Justificatory Function

But do we, really? Is regulation constitutional law’s sole function? For unless we are willing to ascribe every nook and cranny of the constitutional domain to the Framers’ transgenerational mandates — from presidential powers and rules regarding justiciability to myriad doctrines distinguishing between speech and conduct, or limiting federal commandeering of state bureaucracies or denying constitutional protection to interests in adequate healthcare, shelter, education, and so on — then it seems that additional forces are at work in constitutional law. “A mere respect for constituted authority must not be confused with fidelity to law,”⁵¹ Professor Lon Fuller once warned. Defining the grounds of that higher fidelity, and squaring those grounds with respect for constituted — and, even more delicately, constituent — authority, are defining questions in constitutional jurisprudence.

Michelman presents the findings of Rawlsian liberalism. As law, we have seen, the constitution regulates. But, as higher law, the constitution has an additional function. It is the country’s “public platform for the justification of political coercion” (p. 1). Thus, the intonation that “we must never forget, that it is a constitution we are expounding,”⁵² has a special ring in liberal constitutionalism. It means not only regulation according to the Framers’ will but also, in Michelman’s words, “a basis on which free and equal citizens, some of them finding deeply wrong and repugnant some of the laws right now issuing from the duly constituted authorities, can nevertheless freely and willingly accept those laws and be prepared normally to abide by them” (p. 4). The justificatory mission of constitutional law is directed toward the disagreements that citizens of democratic societies have about myriad public policies whose effects as law reverberate in their lives. Reverberation here is a euphemism for coercion. Political power being “always coercive power,”⁵³ its coercive exercise is pure violence unless that exercise, which in a democracy always represents the “power of free and equal citizens as a collective body,”⁵⁴ is properly justified by the use of public reason. Citizens justify the exercise of political power to one another directly (or “collectively,” to use Michelman’s term) with regard to acts such as voting or, more commonly, circuitously (“distributively”) with respect to the coercive enforcement of ordinary law (p. 23). The proper discharge of the duty to justify legitimizes the use of political power, though it might be insufficient to establish a correlative obligation to obey the law as a matter of political morality.⁵⁵ Normative liberal individualism tunes the radar of liberalism to pick up the justificatory function. In the recognition of a priority of concern⁵⁶ for individuals, understood as “self-authenticating sources of valid claims,”⁵⁷ liberalism grounds a duty to put political acts or social arrangements to the test of reason. Justification by way of superstition, tradition, history, or myth is unacceptable sacrificium intellectus.⁵⁸

A justificatory function is implicit in most if not all constitutional theories. But most theories subsume it to regulation. From the standpoint of originalism, for example, justification requires little beyond a showing of compliance with the people’s regulatory mandates.⁵⁹ It follows, in this view, that ordinary laws are legitimately enforced against dissenters because such laws comply with the regulatory terms of the constitution in force, which the political community has given to itself in an act of popular authorship. For does political freedom not, as Professor Hans Kelsen captured it, “mean[] to be subject to a will, which is not, however, a foreign, but rather one’s own will”?⁶⁰

The matters are, well, slightly more complex. Liberalism distinguishes justification from regulation because it rejects content agnosticism. “A liberal society,” Michelman writes, “will always have in view, for its substantive constitutional matter, a regulatory aim” (p. 4). Thus, from a liberal perspective, constitutional authority cannot be reduced to pedigree; it must have a particular content. But even when liberals agree about the constitutional incorporation of substantive elements (rights and liberties),⁶¹ and even when that agreement extends to the specific list to be incorporated, there are still fault lines within liberalism between comprehensive and political approaches. Some liberal conceptions, Professor Ronald Dworkin’s perhaps most compellingly, justify substantive content in light of comprehensive ethical and philosophical doctrines.⁶² Such anchoring is inevitable, according to this approach, since there is no Archimedean standpoint outside comprehensive doctrines.⁶³ From this perspective, the fact of reasonable pluralism is not internal to the terms of the justificatory function of constitutional law.⁶⁴

By contrast, political liberalism seeks to avoid reliance on comprehensive doctrines.⁶⁵ From its standpoint, justification of coercion in a pluralist society is bound to fail when it is grounded in moral, philosophical, or religious comprehensive doctrines.⁶⁶ In pluralist, democratic societies, all comprehensive doctrines are sectarian.⁶⁷ Only a political conception can provide the proper basis of justification.⁶⁸ Such a political conception, while moral in nature,⁶⁹ is “freestanding” in its formulation of all comprehensive doctrines, yet also capable of being the object of the “overlapping consensus” of all reasonable comprehensive views that endorse the two principles of justice.⁷⁰ Thus, Rawls’s liberal principle of legitimacy: “[O]ur exercise of political power is proper and hence justifiable only when it is exercised in accordance with a constitution the essentials of which all citizens may reasonably be expected to endorse in the light of principles and ideals acceptable to them as reasonable and rational.”⁷¹ Rather than reopen debates about the soundness of the contested measure, a task for which opportunities existed under the procedures for lawmaking, liberal legitimacy relies on constitutional law to move justification postenactment one level up to the constitution overseeing the procedures that produced the still-contested but now-lawful measure. It is by reference to the constitution that the enforcement of the contested measure can be deemed legitimate. Specifically, a constitution can serve as a platform for justification — it is, in Michelman’s terminology, “justification-worthy” (p. 22) — when it includes and implements, in ways apparent to all, a certain set of regulatory mandates understood as constitutional essentials.

Justice as fairness, as one liberal political conception of justice, ties justification to two kinds of constitutional essentials.⁷² One is structural and refers to the effectiveness of the government and the structure of state institutions.⁷³ The other is substantive and includes a subset of rights and liberties.⁷⁴ Constitutional essentials are grounded in a political, not comprehensive, conception that gives political specification to the principles of justice.⁷⁵ But given “the greatest urgency for citizens to reach practical agreement in judgment about the constitutional essentials,”⁷⁶ on which depends the very possibility of legitimacy in a society from which reasonable pluralism has ruled out convergence on matters of justice, the principles of justice cannot be specified tale e quale in a political conception. Some elements of the principles of justice, for example, the “fair equality of opportunity” and the “difference principle,” are not constitutional essentials.⁷⁷ By contrast, substantive constitutional essentials reflect a particular ordering of the scheme of rights, liberties, and opportunities pursuant to the political specification by justice as fairness as the first principle of justice.⁷⁸ As we will see, Rawls’s later concession that there is a family of reasonable political conceptions of justice⁷⁹ shows justice as fairness as one of a number of political specifications of the principles of justice, each with its own list of constitutional essentials.

To conclude, the liberal principle of legitimacy introduces what Michelman calls “deflection to framework” (p. 94). Conflict over “divisive questions of substance (does this law or policy merit the respect or rather the contempt of a right-thinking person?)” is deflected to “a different question (is this law or policy constitutional?)” (p. 26). Deflection is premised on the constitution being justification-worthy, which depends on its incorporation of constitutional essentials. While those constitutional mandates are substantive and structural, their role is procedural.⁸⁰ Hence, Michelman refers to the justificatory function interchangeably as a proceduralizing function.

C.  Functional (Mis)Alignments

The reliance of the justificatory function on constitutional essentials, and thus on a certain regulatory content, indicates a coupling of the regulatory and justificatory functions.⁸¹ “Justificatory ambition presupposes regulatory effect” is the point to which Michelman returns, his “slogan” (p. 4). But, Michelman insists, the two functions are different — “not nearly the same” (p. 4). They point in different directions — regulation points toward authority, justification points toward reason (pp. 4–5). Regulation requires unearthing and submitting to the people’s will. It is a “historical-factual inquiry into what the authors envisaged as the gist and content . . . of the . . . principles in play” (p. 129). By contrast, searching the shared basis for justification of coercion orients the corresponding function of constitutional law toward “the moving present” (p. 4).

To understand the complex relation between these functions, it may be helpful to distinguish at this point between an external perspective, which involves approaching constitutional functions as an outsider, and a participant’s — official or citizen — perspective that takes an “internal” point of view.⁸² This latter perspective of liberal normativity gives regulation an idealized cast. “By hypothesis,” Michelman writes, “in a well-ordered society, the constitution actually now in force in the country does meet the test; it is . . . a ‘justification-worthy’ constitution” (p. 22). That is, from within an internal normative liberal perspective, by hypothesis there is a match between the regulatory content of the constitution-in-force and the constitutional essentials that render a constitution justification-worthy. Historically, however, the reality that “a certain set of scripted constitutional essentials is effectively in control of coercive state action” (p. 146) is the result of political-historical development (p. 19). For the decisionmaker tasked with the application of the constitution, the match is a historical contingency.⁸³ It is a “lucky” (p. 132) contingency since the process of constitutional application will fulfill a dual function. The decisionmaker will be able to “[a]pply the constitution, then, for the sake of regulation in accordance with the authors’ directions, and [she] will also ipso facto apply it with regime-justifying effect” (p. 132).

But while political-philosophical accounts can build on assumptions of a perfect match between a constitution’s regulatory content and its justificatory capability, matters are more complex as far as constitutional theory is concerned. For even within the framework of a realistic utopia, misalignments are the more likely scenario in constitutional practice. So long as the constitution at least aspires to be justification-worthy,⁸⁴ partial alignments of the regulatory and justificatory functions are the most common constitutional situations. Constitutional Essentials shows how close attention to the partial misalignments between the regulatory and justificatory functions offers insight into the forces that shape and reshape the constitutional terrain.

Consider the entanglement of regulation and justification in a few different contexts. A sovereign parliament can obviously regulate. But, Michelman asks, can a “legally unconstrained parliamentary supremacy . . . provide the justificatory service envisaged by the [liberal principle of legitimacy]” (p. 41)? Can it respect, under conditions of pluralism, the equal basic rights and liberties against transient political majorities? Whatever the answer, the point is that these are separate questions. Or, consider next a political system based on a customary constitution. Such a constitution, under certain cultural and historical circumstances, can regulate unimpededly. But does it “work properly to justify the politics it regulates” (p. 38)? The procedural nature of justification “presupposes a kind and degree of fixation and publication of the constitution’s prescriptive contents, and of advance public settlement of their meanings-in-application” (p. 38). The implication is not that custom can never serve the justificatory function. It is, rather, that it is difficult to assume without more that custom can fulfill such a function in democratic societies characterized by reasonable pluralism.

Consider now the interplay between regulation and justification in the context of the constitutionalization of antipoverty. The denial of constitutional recognition to social and economic rights is often justified on the ground of their complex nature and malleability, as well as the difficulty in formalizing their scope and in structuring appropriate remedies.⁸⁵ Some of these concerns resonate with Rawls. He excludes fair equality of opportunity from the list of constitutional essentials,⁸⁶ not on the ground of its lack of importance, but rather because it fails to clear the threshold of transparency in its realization. Since it is harder to tell if fair opportunity principles have been realized, the existence of “wide differences of reasonable opinion”⁸⁷ undermines the “urgent”⁸⁸ need for citizens to agree on the essentials of basic freedoms. However, Michelman shows that many of the concerns regarding justiciability are shaped by background structural considerations, some institutional (strong-form judicial review), others conceptual (a categorical approach to rights). Changes in those background assumptions might be able to mitigate justiciability concerns.⁸⁹ Interestingly, Michelman interprets comparative constitutional developments such as the rise of weak-form judicial review or dialogical interactions between courts and legislators as instances of the justificatory mission’s pushback.⁹⁰ The same is true, mutatis mutandis, regarding the horizontal application of constitutional rights.⁹¹

We come now to the context of rights interpretation. Partial alignment here refers to situations where “constitutional authors happen to have constitutionalized all the rights whose observance is required to make a democratically and liberally justifiable regime — and none that would defeat it” (p. 133). Comparing the constitutional text with the list of equal basic rights and liberties of citizenship that Rawls uses to illustrate constitutional essentials — “such as the right to vote and to participate in politics, liberty of conscience, freedom of thought and of association, as well as the protections of the rule of law”⁹² — will inevitably reveal mismatches. Some mismatches will result from omissions, such as the right to vote;⁹³ others will be the effect of excesses, such as the inclusion of a right to bear arms.⁹⁴

Now, mismatches denote an observer’s external perspective. An internal perspective is different. The U.S. Supreme Court did not approach the existence of a right to vote in Baker v. Carr⁹⁵ based on list cross-checking. It approached it, rather, as an interpretative question about the existence of such a right in the interstices of the U.S. Constitution, and, by so approaching it, found the right “inherent in the republican form of government.”⁹⁶ The same approach is at work for a gamut of questions, from the protection of commercial speech to school vouchers, flag burning, or Nazi marches. In every case, the interpreter proceeds as if there is a match between the constitution in force and the ideal, or justification-worthy, constitution. Justificatory pressure relies on the context of interpretation to open up regulation from within.⁹⁷ The interpretative nature of legal concepts offers the needed leeway, sometimes “within some outer limit of semantic defensibility” (p. 129). Even when interpreters operate, as judges do, under stringent requirements of “fit,”⁹⁸ they rarely do it without some degree of interpretative freedom. And a modicum of interpretative leeway is enough to provide the entry point for the justificatory function to exercise its pull to reason.

And yet, true as all this might be, Michelman insists in the separability of the two functions. There is an inherent tension between the pull to history and the pull to reason; “[t]here is no middle ground; no hermeneutic theory can dissolve the difference” (p. 132).⁹⁹ Attempts at mitigation are, of course, possible. “[T]ertium datur,” announces Professor Alessandro Ferrara, arguing that judges can honor democratic authorship while departing from the “cognitive assumptions against which such original will was formed.”¹⁰⁰ Dworkin sought mitigation through a moral reading of the Constitution’s “great clauses, in their majestic abstraction.”¹⁰¹ While even sympathetic critics have faulted him for proceeding as if constitutional values were infinitely malleable,¹⁰² what is there to stop the judge from interpreting as if the gap between contingency and reason could be closed, as if its looming presence were a threat of interpretative failure, not a premise of reasoning?

These are not rhetorical questions. Legal debates, Michelman argues, encompass a “duality of yearnings” (p. 12) between the authority of democratic self-rule and the rationality of a particular kind of polity. Regulation anchors justification as the scripted grounding upon which a shared basis of justification is possible. Too strong of an idealizing risks putting the regulatory function into the shadows from which Rawls retrieved justification. Thus, Michelman points out the “spark of originalism”¹⁰³ that counters, in Rawls’s thought, a purely idealizing pull of the liberal principle of legitimacy (p. 134). Conversely, Rawls’s reference to judges’ reliance on public reason qualifies any attempt to treat interpretation as exclusively historical-factual. A fitting conclusion seems to be that philosophy needs law to reconcile history and reason, but law does not allow for the dissolution of either.¹⁰⁴ What law does make possible is a “coherent practice of constitutional-legal application.”¹⁰⁵ This praxis, a pragmatic-hermeneutic solution, is not of the kind that Professor Richard Rorty once described as “an incantatory device for blurring every possible distinction.”¹⁰⁶ Distinctions remain, as do the tensions.

II.  Constitutional Proceduralizations

We turn now to the justificatory function, and specifically to its proceduralizing role. In Michelman’s “strong reading” (p. 12), proceduralization has two steps. The first step deflects substantive disagreements over the enforcement of ordinary law to a set of constitutional essentials qua “stipulation of the terms of a procedure” (p. 26). The second concerns the interpretation of constitutional essentials, a matter of “submission to institutional settlement” (p. 44) to some trusted institution — for example, a “particular form of a law-court (it could be, say, a committee of the parliament responsible for constitutional review of pending legislation and legislative agendas)” (p. 43). This Part discusses these steps through changes that Rawls introduced in his later work: first, a shift from constitutional justification to ethical justification; and second, the extension of reasonable pluralism beyond comprehensive doctrines to the political conception. But the opening of political conceptions to reasonable pluralism creates the need for a third proceduralization, of understanding constitutional essentials as essentials of the democratic form of government. Absent this third step, Constitutional Essentials is a constitutional theory of justice as fairness. Expanded to formalize the form of government, it becomes the constitutional theory of political liberalism.

A.  From Justice to Legitimacy

As we have ever seen, the liberal principle of legitimacy makes the constitution, as justification procedure, central to the shift from justice to legitimacy.¹⁰⁷ But is the constitution indispensable to liberal legitimacy, or could the latter be conceived detached from the constitution? An instructive a contrario context for reflecting on these matters comes, intriguingly enough, from Rawls’s removal of references to the constitution in his restatement of the liberal principle of legitimacy. In this later iteration, Rawls writes: “Our exercise of political power is proper only when we sincerely believe that the reasons we would offer for our political actions — were we to state them as government officials — are sufficient, and we also reasonably think that other citizens might also reasonably accept those reasons.”¹⁰⁸

Part II of Constitutional Essentials discusses this “non-negligible complication” (p. 12) of a shift, as Michelman frames it, from the procedural justification-by-constitution to an ethical, justification-by-reciprocity model (p. 12). The shift leads Michelman to worry about the de-institutionalization of ethical justification. Specifically, the move away from procedural, constitutional grounds and toward a personal, sincere belief that the reasons supporting the contested law can be reasonably accepted by other citizens, presumably including dissenters, bypasses the question of a shared standpoint. But, Michelman points out, “[n]othing has occurred to meet the call on the citizen body to justify the coercion exerted by its (‘our’) statute” (p. 108). That something — a proceduralization — must occur to make justification possible. Why?

Michelman interprets the shift differently in the two contexts of justification. In the collective context, where the exercise of political power proceeds from the collective to each dissenter, proceduralization has an equalizing effect made necessary partly by the existence of vastly asymmetrical relations. Justification by reciprocity cannot deliver that equalization. Consider a reconstruction of its steps. At moment one, the dissenter addressee finds herself at the receiving end of her fellow citizens’ justification offered circuitously through public institutions. At moment two, the dissenter addressee considers if the justification provided is adequate. She might decide that it is, or that it is not. Then what? Then, according to Rawls, the duty of reciprocity kicks in to demand as many rounds of further justificatory exercises as are necessary for the satisfaction of the liberal principle of legitimacy. But, given the burdens of judgment, the parties might not reach a common conclusion on the worth, progress, or even need for further justification. That failure is particularly concerning given the existence of asymmetries between the parties. Only a procedure or institutional mechanism can assist at that point, but such a procedure cannot spring into existence organically. It is, of course, conceivable that cultural or social factors could converge to mitigate the need for such a mechanism and supplant a common ground for purposes of justification. But so long as reasonable pluralism remains a “permanent feature of [our political] culture”¹⁰⁹ rather than a transient, “historical condition that may soon pass away,”¹¹⁰ such cultural and social factors are sociological trivia. Put differently, they are improper grounds on which a liberal political conception can find a “shared basis”¹¹¹ for justification.

So if there must be a turn to justification by reciprocity, Michelman argues, that turn must occur in distributive and less hierarchal contexts where citizens justify to other citizens their acts, paragovernmental (such as voting) or beyond (p. 108). But, even in that setting Michelman interprets the turn to reciprocity as making no concession to deinstitutionalization. For, in his reading, citizens may themselves decide to incorporate procedure as part of their justificatory processes. The conformity of a contested act to the constitution, subject  — as we will see in the next section  — to institutional settlement, can itself be included in the interaction among citizens. In this way, ethical justification could be made compatible with indirect institutionalization. This is Michelman’s best interpretation of Rawls. But, as Michelman admits, even this interpretation raises difficulties because there is no guarantee, given the coordination challenges among citizens and the burdens of judgment, that subjectively incorporated proceduralization can properly discharge the proceduralizing function. Where to go from here? As in the collective context, one solution could be a closing of intersubjective gaps through a thickening of social commonalities via an extended “palpable web of communication — a background political culture” (p. 123). But this solution presents a difficulty. If a thickening of the shared background could answer this problem, it could also answer many related problems, most immediately that of the soundness of offsetting the procedural dimension of collective justification. Yet just as reasonable pluralism prevented stipulations of convergence in that context, so it prevents stipulations of thickening of social bonds in the distributive context.

Michelman concludes here the analysis on this set of issues. But it seems to me that there is one additional question to ask. Why did Rawls fail to see the dependence of ethical justification on assumptions contrary to the fact of reasonable pluralism in democratic societies? The answer, I believe, could be framed as a tension between integration and disintegration embedded in political liberalism. Ethical justification signals a tilt in a direction that Michelman’s insistence on proceduralization convincingly resists.

By hypothesis, a well-ordered society is one successfully integrated around a political conception that sets the “fair terms of political cooperation among free and equal citizens in conditions of reasonable pluralism” (p. 98). At the deepest level, integration involves the production and reproduction of meaning of “a certain form of culture shared by persons with certain conceptions of their good.”¹¹² Those personal conceptions mature over time in response to a number of stimuli, including from the political conception — or conceptions — of justice.¹¹³ Rawls follows here in a tradition of political philosophy that reflects on the shaping role of institutions on the lives of individuals who live under them. In Politics, for example, Aristotle observed that “different constitutions require different types of good citizen, while the good man is always the same.”¹¹⁴ And so it might have been partly in response to the need to operationalize the insight that institutional structure shapes personal worldviews that Rawls added the oft-misunderstood stipulation about the closure of a well-ordered society, which he defined as “self-contained and as having no relations with other societies.”¹¹⁵ The no-exit scenario is meant to show the inescapability of politics and hence the practical and moral imperative of forms of social integration that constantly reinforce citizens’ sense of justice.¹¹⁶ Citizens come to see themselves as having certain rights and liberties and thus develop “[a] conception of themselves as sharing the status of equal citizenship.”¹¹⁷

There is, however, no lock on social integration. Its achievement is a dynamic, iterative process. Moments of integration and disintegration supersede one another, and law contributes to both. Forms of integration that discriminate impermissibly or are incompatible with mutual toleration must be broken down, however strong the social bond they bring about. But under conditions of reasonable pluralism, it will not always be clear what forms of integration must be protected, and we should assume that reasonable disagreement will pervade those debates too. Combine these elements — disagreement and iterative, open-ended processes — and a growing pressure against social innovation but for preservation of existing forms of integration will start exerting itself.

Such subtle tensions between preservation and integrative iteration are present in Political Liberalism. For instance, the stipulation of a closed society acquires, in a manner ancillary but not entirely unwelcomed, it seems, for Rawls, implications for cultural belonging. It is a “grave step,” Rawls warns, to leave “the society and culture in which we have been raised . . . whose language we use in speech and thought to express and understand ourselves . . . [and] whose history, customs, and conventions we depend on to find our place in the social world.”¹¹⁸ Now, Rawls may be right to be concerned about the social costs of cultural disassimilation. But it is a different question if such costs can be permissibly factored into liberalism as a political philosophy of a modern pluralist society. As Michelman shows, the stronger the pluralist assumption, the thinner the cultural connective tissues and the stronger the need for procedure (pp. 42, 123–24). Conversely, the weaker the pluralist assumption, the thicker the cultural connective tissues. But, and this point seems to me crucial, social thickening helps social stabilization at a price. That is a price that many other conceptions of justice, more open than Rawls’s to the possibility of a thicker community, have been willing to pay.¹¹⁹ But I read Michelman’s insistence on the need for strong proceduralization as an all-important reminder that Political Liberalism has always found that price to be unacceptably high.¹²⁰

B.  The Significance of Constitutional Validity

Constitutional essentials are, as we have seen, central to the shift from justice to legitimacy. Disputes over the substance of ordinary law are deflected to the level of higher law, where the question becomes the contested law’s compatibility with a constitution that is justification-worthy by virtue of its incorporation of constitutional essentials. If an ordinary law is constitutional — not necessarily right, wise, or just — then it is “in good moral order for us to call on each other for compliance with it” (p. 25). But where does the assessment of the constitutional compatibility of contested political acts rest? Does it rest, in a decentralized fashion, with each individual, or is it rather, and on what grounds, delegated to a central institution?

We have already seen part of the answer to these questions. Given the fact of reasonable pluralism, assessment cannot be left to individual judgment. Michelman posits a second proceduralization in the need for “convergence on applications of the constitutional essentials to rule contested laws and policies in or out” (p. 43). The constitutionality assessment is subject to institutional settlement as multistep proceduralization: centralization of the constitutional compatibility at the level of “some such trusted institution” (p. 43); acquiescence by individuals, including concerned dissenters, to that institution’s authority; a sorting decision by said trusted institution regarding constitutional compatibility; and citizens’ acceptance of that answer as authoritative (pp. 8, 43). The compatibility decision, Michelman insists, must be an answer (in law¹²¹) as to whether “the law or policy in question might be right or it might be wrong, it might be just or it might be unjust, but it is not outside the constitution and so it is in good moral order for us to call on each other for compliance with it” (p. 25). In-or-out is a sorting answer. It rests on a conception of constitutional validity that is binary, not a matter of degree.¹²²

Justice as fairness leaves somewhat open the question which institutional arrangements can fulfill the function of settlement. As we have already seen, political liberalism does not reject parliamentary supremacy “as such” (p. 40).¹²³ Consider now judicial review. Some of Rawls’s commentators suggest that judicial review, while compatible with political liberalism, is not mandated by its terms when democratic societies have developed practices and traditions through which majorities can protect the rights and liberties of individuals.¹²⁴ For Michelman, the core concern of Rawlsian liberalism is institutional settlement; a trusted institution, whatever form it takes, will be the arbiter of constitutional compatibility that settles the matter for the political community (pp. 43–44). Practices and traditions alone will not do if they are detached from institutional form. As to the form, Michelman interprets Rawls to allow it to be a court or a parliamentary committee or other such institution (p. 43).¹²⁵ True, however, Rawls’s “standard model” is one of “a codified legal constitution with a bill of substantive rights, under administration by a court of law” (p. 38). But this standard picture is not part of, nor mandated by, the political conception. Justice as fairness does not see courts as necessary “authoritative public arbiters of the fulfillment of the constitutional essentials” (p. 55). Whether or not courts play that role is an empirical matter of how particular jurisdictions have developed in time. But, and crucially, neither does justice as fairness provide reasons to reverse this view of courts, once established. Indeed, as Michelman writes: “Rawls finds no cause to upend assignment to a court of a central role in such service, when once that has become a settled part of a country’s political practice” (p. 55). Future reversals are possible. Judgments of constitutional validity will have a settling effect so long as they originate from trusted institutions. When institutions lose trust,¹²⁶ the people reclaim their reverse prerogative. For, as Rawls insists, “in constitutional government the ultimate power cannot be left to the legislature or even to a supreme court, which is only the highest judicial interpreter of the constitution. Ultimate power is held by the three branches in a duly specified relation with one another with each responsible to the people.”¹²⁷

The people’s residual power frames the normative structure of institutional settlement regarding questions of constitutional compatibility. Any form of institutional settlement implies, as Professor Richard Fallon points out, that “authority to decide must at least sometimes include authority to decide wrongly.”¹²⁸ And yet, the point of the second proceduralization is — it has to be — not “settlement for settlement’s sake.”¹²⁹ Such a strong pull to authority would open political liberalism to critiques, similar to those once leveled against the Legal Process School, which included that it was “apologetic and complacent” and that it “tend[ed] to assume the moral legitimacy of the status quo, to worry less about the desirability of reform than about institutional competence to effect change, and generally to idealize elite institutions.”¹³⁰ Institutional settlement, pragmatic and problem-solving as it may be,¹³¹ rejects a “thin theory of democracy,” unconcerned with substantive fairness as an element of political legitimacy.¹³² That is true of political liberalism, which offers standards of justice for assessing the outcomes of political processes.¹³³ Still, like all institutional-settlement accounts, political liberalism is not entirely immune to such critiques.

This tension between institutional settlement and normative justification takes a particular — and particularly challenging — form in Rawls’s late thought. Since Hobbes, social contract theory has featured containment of moral disagreement via proceduralizing techniques.¹³⁴ While the priority of the right over the good in Theory of Justice sought to answer disagreement in a moral theory concerned less directly with moral truth than with a form of social morality,¹³⁵ the liberal principle of legitimacy as announced in Political Liberalism detached social organization from “transcendental[] anchor[ing]” and instead insulated it by way of public reason.¹³⁶ Yet, in a later restatement, Rawls revised the terms of that solution. A combination of pervasive incommensurability of considerations, ambiguities about concepts, and challenges in processing evidence (p. 54), which Rawls calls “burdens of judgment,”¹³⁷ makes reasonable pluralism a feature of political conceptions. Thus, there is not only one political conception but, Rawls now claims, a family of reasonable — different, possibly even “incompatible”¹³⁸ — political conceptions of justice. Rawls could still see justice as fairness as “the . . . most reasonable [conception] for us,”¹³⁹ but the point is that others could reasonably disagree with that assessment.

What does institutional settlement mean under these circumstances? What could it mean considering a plurality of liberal political conceptions, each with its own ordering of the scheme of rights, liberties, and opportunities, its own solution to the problem of fair value,¹⁴⁰ and when multiple schemes of constitutional essentials are in circulation (p. 60)?¹⁴¹ Michelman finds the answer in Rawls’s distinction between the “most reasonable and “‘at least’ reasonable” political conception (for us) (p. 119). While each of us has a view of which scheme of liberties and related considerations form the most reasonable conception for us, the demands of reciprocity require acquiescence in other conceptions, which rather than being the most reasonable for us are nevertheless part of the at-least-reasonable category (pp. 59–60).

Where Rawls frames the issue as a morality of the duty (of reciprocity), Michelman seems to see it as akin to a morality of aspiration.¹⁴² Citizens in a liberal society must understand, since they are reasonable, that differences among them are an inevitable part of our uncharted journey to becoming a free community of equals. “A just constitution . . . is never ‘fully realized’” (p. 86).¹⁴³ Reasonableness, Michelman argues, implies “interpersonal civic fellowship” (p. 100), one that moves beyond the space of reason and into the “sacrifice” and “graciousness” (p. 100) on which our common life ultimately depends.¹⁴⁴

This is a plausible answer. But can it count as a satisfactory answer given the sorting function of the second proceduralization? Tolerance and sacrifice are attitudes one adopts as part of protracted, often tormented, processes of accepting certain political outcomes as reflecting conceptions that are “‘at least’ reasonable” (though not necessarily the “most reasonable” for us) (p. 119). One implication is that, under these conditions, legitimacy judgments are no longer made with a directness of the kind that also characterizes, for example, the application of the rule of recognition in stable legal systems.¹⁴⁵ At least sometimes, this may pose a problem since legitimacy judgments remain, by their nature, sorting (in-or-out) judgments. Citizens and officials “point by way of justification” (p. 22),¹⁴⁶ Michelman writes. Agonizing, drawn-out processes risk undermining the effectiveness of the liberal principle of legitimacy. Something else must occur to control for that risk. Could the liberal principle of legitimacy require another proceduralization, an additional step beyond those Michelman identifies?

C.  Formalizing the Form of Government

Let us step back and consider the larger framework of Rawls’s political liberalism. Justice as fairness “constitutes the most appropriate moral basis for a democratic society.”¹⁴⁷ Exactly what this means has understandably been a source of some puzzlement. While Rawls stresses that “justice as fairness allows and is consistent with . . . popular sovereignty,”¹⁴⁸ Political Liberalism lacks an account of constituent power.¹⁴⁹ Critics have concluded that “democracy is not a distinctive presence in Liberalism.”¹⁵⁰ That, however, seems hasty. Collective self-rule seems embedded in “the problem of political liberalism,” in the need “to work out a political conception of . . . justice for a (liberal) constitutional democratic regime.”¹⁵¹ The assumptions of reasonableness and reciprocity come from the bonds that bind a free community of equals.¹⁵² Democracy, it seems, is political liberalism’s implied postulate.

Note that democracy in this context does not refer to sites for political mobilization or deliberation.¹⁵³ Important as such sites undoubtedly are, democracy in that sense cannot enter political liberalism as postulate. If anything, availability of sites of contestation is a standard by which to assess the political conception. Professor Jürgen Habermas’s critique that citizens in Rawls’s well-ordered society cannot “reignite the radical democratic embers of the original position”¹⁵⁴ signals his assessment that Political Liberalism fails in the task. Attuned to these dangers, Michelman’s study of Rawls always seeks to point out, or to carve out,¹⁵⁵ room for “democracy’s liberatory side, its agonistic side” (p. 110).

It is in a different sense, not of political value but as form of government,¹⁵⁶ that democracy is a postulate. Political liberalism is for a democratic society partly because, as Professor Joshua Cohen astutely observes, a democratic political regime is itself a requirement of justice as fairness.¹⁵⁷ Indeed, Rawls lists among the principles of constitutionalism a “democratically ratified constitution.”¹⁵⁸ To this, Michelman adds a credibility condition of democratic authorship as “itself a condition of the regime’s acceptability in the present to any and all reasonable and rational citizens” (p. 134),¹⁵⁹ implying that a regime’s present acceptability includes, among other elements, an understanding that the regime is the expression of a political community’s collective self-rule. This insight will prove crucial.

But note, first, that from a liberal perspective, democratic authorship alone does not make a regime acceptable or justification-worthy.¹⁶⁰ There is a further requirement that the constitution of the regime include a certain regulatory schedule. Here we find again the centripetal pull of auctorial authority toward submission to the founders’ regulatory will and that of reason toward the justification in the here and now. We have already seen that, since justification takes place in an interpretative context that requires the ascription of meaning to regulation, the tension between what the people “did will” and what the people “should will” exists not just between regulation and justification, but also, as Michelman puts it, “within the justificatory function itself” (p. 135).

But does a similar tension exist within the regulatory function? If so, what could be the source of the normative should? In the constitution-making moment — or moments¹⁶¹ — facing the task and chance of political creation, what obligation can possibly behoove the self-governing people and provide a normative standard by which to judge their creation? Of course, any of the participants in the decisionmaking process can severally adopt a critical normative perspective and assess how closely the result of the collective process matches their own underlying conception of justice. But is that rightness by the people themselves, collectively as constituent power? Put differently, can the evaluative criterion for assessing the constitutional creation be located not outside the people themselves as a collective, but somehow within popular sovereignty? Can it originate within the people themselves not just as persons endowed with two moral powers but also as actors involved in a regulatory process of collective self-government?

Decidedly not an answer for political liberalism is reference to a natural or “cosmic ideal force,” to which “human affairs are at all times and everywhere beholden, like it or not” (p. 173).¹⁶² Law’s authority derives, in such a view, from its representation — or declaration¹⁶³ — of principles of “common right and reason.”¹⁶⁴ Political liberalism rejects the natural-law view that authority is a matter of alignment with transcendental values.¹⁶⁵ By contrast to these metaphysical or transcendental conceptions, which give democracy no privileged place,¹⁶⁶ political conceptions of justice seek the source of normative authority within the people themselves. That authority is immanent, not transcendent;¹⁶⁷ terrestrial, not cosmic.¹⁶⁸ Sovereignty, in this account, is “both popular and limited . . . a self-government limited by a self-imposed rule of law, a rule that, while it originates in the people, also stands above them.”¹⁶⁹ Is there a thread through these paradoxes?

Michelman gives a hint. “By hypothesis,” he writes, “in a well-ordered society, the constitution actually now in force in the country does meet the test” of a “‘justification-worthy’ constitution” (p. 22). We first approached this hypothesis above from the perspective of the constitutional interpreter.¹⁷⁰ The question now is different. What are the conditions of possibility for the hypothesis and the idealization of the society in question? Part of the answer is that a well-ordered society is structured as a political society of a particular type — it has a particular form of government. Call that form of government representation “ingraft[ed] . . . upon democracy,” in Thomas Paine’s words,¹⁷¹ or, with Professor Danielle Allen, “egalitarian participatory constitutional democracy,”¹⁷² or, more plainly with Rawls, “constitutional liberal democratic” government.¹⁷³ Thus, to rephrase the hypothesis, given that a well-ordered society is a (liberal) constitutional democracy, it is possible to assume that its constitution in effect is justification-worthy.

Consider now the implications of this restatement. Rawls presents constitutional essentials as derived from the political conception of justice.¹⁷⁴ But this restatement reveals the constitutional essentials as essentials of a particular form of government. They are principles or norms “resulting”¹⁷⁵ or “directly derived from the nature of government.”¹⁷⁶ Their inclusion in liberal legitimacy confirms the normative mandate for the democratic form of government as part of the political conception. Thus, the connection between the constitutional essentials and the form of government allows justice as fairness to introduce the hypothesis that in a well-ordered society, understood now as a constitutional democracy, the regulatory directives of the constitution-in-force match the features of justification-worthy constitution because, by hypothesis, the constitutional democratic form of government implies, according to political liberalism, a certain set of constitutional essentials.

One still-unanswered question concerns how and when that choice can be factored into the general structure of political authority according to justice as fairness. A sketch of an answer is that after the people’s representatives select the principles of justice in the original position, they assemble in a constitutional convention where, as the people’s delegates, they draw out the rules of the constitution in two steps: first, the selection of the (one and the same) form of government, then second, the selection of the constitutional essentials.¹⁷⁷ Political conceptions of justice interpret the form of government according to their own specification of the two principles of justice, and accordingly present their own list of constitutional essentials. Note how the form of government becomes a politically immanent guiding principle for the subsequent constitutional drafting process.¹⁷⁸ That process is, of course, complex. Rawls points out that constitutional essentials are determined in light of the principles of justice, including the form of government; the particular “historical, cultural and social conditions” do matter.¹⁷⁹ For instance, while there are small variations in the substantive constitutional essentials, or so Rawls surmises, structural choices — presidential, parliamentary or mixed, federal or unitary, bicameral or unicameral, electoral system and so forth — allow for variations on a wider spectrum.¹⁸⁰ Thus, constitutional essentials can vary, although substantive requirements less so than structural essentials. But all institutional variations are subsumed within a constitutional democratic form of government.

Finally, understanding constitutional essentials as essentials of the form of the government reveals how legitimacy judgments, as sorting judgments, do not undermine the operational effectives of the liberal principle of legitimacy despite the existence of a family of reasonable political conceptions. The form of government clusters the constitutional essentials and focuses citizens’ assessment of the constitution’s justification-worthiness.¹⁸¹ When “[e]ach citizen can look the others in the eye” and say that the system, as constituted by these constitutional essentials, is “sufficiently worth upholding to give each other of us prevailing reason to insist on each other’s acceptance in practice of the system,”¹⁸² we say that the constitutional order — our “form of association”¹⁸³ — retains the form that we as citizens have committed ourselves to upholding. Even though the members of the family of liberal political conceptions may present different candidates for constitutional essentials, not only the principles of justice but also the form of government hold constant.

III.  Constitutional Democracy and Political Liberalism

This Part briefly moves beyond the particulars of Constitutional Essentials to explore the implications of the view, implicit in political liberalism but now properly formalized, of constitutional essentials as essentials of the constitutional democratic form of government. These implications are of three types, loosely corresponding to Rawls’s conception of the roles of political philosophy.¹⁸⁴ The first role — practical — is that of protection. This role conceptualizes constitutional essentials as peremptory norms that mark the limit of tolerance with regard to permissible constitutional reform and infraconstitutional policy. The second role is reconciliation. This role presents metastructural constitutional interpretation as a philosophical mode of interpretation, in Michelman’s sense, that combines substance and structure to ground constitutional rights in the form of government. The third role — orientation — theorizes the normative interface between the constitutional orders of democratic societies. While the discussion up to this Part followed Michelman’s focus on substantive constitutional law, what follows below requires simultaneous engagement with structural constitutional matters.

A.  Protection: Peremptory Constitutional Norms

The ongoing crisis of constitutional democracy in the United States and around the world raises concerns that are orthogonal to the question of political liberalism although, as Michelman argues in the last chapter of Constitutional Essentials, not entirely outside of Rawls’s peripheral vision. Rawls insists that there will always exist “unreasonable and even irrational (and sometimes mad) comprehensive doctrines”¹⁸⁵ that threaten to undermine a society’s unity and political justice, and historical circumstances are imaginable when these forces would make it impossible for reasonable comprehensive doctrines to reach an overlapping consensus over a political conception of justice. The depredations of constitutional democracy in the first decades of the early twenty-first century are, in Michelman’s view, but the latest iteration of a long history testing liberalism’s commitment to tolerance (p. 196).

This point is well taken. But does understanding constitutional essentials as essentials of the democratic form of government deepen the constitutional prescriptions of political liberalism? In particular, does it speak to the challenge facing many constitutional democracies, from Hungary to Venezuela, Turkey, Poland, and the United States, to protect the integrity of democratic institutions from sophisticated, unrelenting attacks aiming to “hollow[ them] out”?¹⁸⁶ Such protection requires shielding from alteration, either informal or formal through constitutional amendment or statutory erosion, of a core of norms at the heart of constitutional democracy.¹⁸⁷ Whether defined as a set of “essential requirements for a democratic state governed by the rule of law”¹⁸⁸ or found to be “inherent in [the constitution’s] very nature, design and purpose,”¹⁸⁹ the task of specifying which norms or principles belong to this unalterable core has been difficult — “fiendishly” so.¹⁹⁰ Scholars have sought answers by cross-checking lists of constitutional provisions across constitutional systems in order to find areas of overlap. The results of what constitutes “an international democratic ‘minimum core’”¹⁹¹ have ranged from relatively short lists such as “competitive elections, liberal rights to speech and association, and the rule of law”¹⁹² to longer ones that include a whole range of provisions, including norms protecting a pluralistic media or an active civil society.¹⁹³

A constitutional theory of political liberalism can ground an alternative and superior approach to this challenge. As essentials of the democratic form of government, constitutional essentials are principles or norms — “peremptory norms”¹⁹⁴ — that mark the limit of tolerance with regard to permissible constitutional reform and constitution-encoding infraconstitutional rules. They form the unalterable core of the constitutional democratic form of government, which the constituent power has selected and whose alteration is ultra vires with respect to the people’s elected representatives. As these are the essential norms of constitutional democracy, their deselection is tantamount to “quit[ting the] form of government”¹⁹⁵ itself.

An important contribution of Rawlsian liberalism is to have shown how to derive the constitutional essentials normatively, from a political conception of justice.¹⁹⁶ Empirical cross-checking is possible, perhaps even irresistible, but empirical overlap by itself is confirmatory and should play at most a guiding role for the normative inquiry. Rawls posits that substantive constitutional essentials are “characterized in more or less the same manner in all free regimes,” “modulo relatively small variations.”¹⁹⁷ The high prevalence of the constitutional essentials across constitutional democracies is to be expected, since not only the principles of justice but also the form of government are the stems from which constitutional essentials grow.

The implications for constitutional change of the internal connection between constitutional essentials and form of government respond to Michelman’s call to interpret political liberalism so as to allow free democratic contestation.¹⁹⁸ For whatever lies outside the ambit of the unalterable core is fair game for variation and institutional reform. Consider the implications for the structure of government. There, justice as fairness embraces the “pluralism of legitimate legal forms”¹⁹⁹ regarding the powers of the legislature, executive, or judiciary. It does not prescribe a particular regime type, though other conceptions that are part of the family of political liberalism conceivably might offer stronger directives of constitutional design to guide the choice at the level of constitutional essentials among parliamentary, presidential, or mixed (semi-presidential) regimes.²⁰⁰ But, as Professor John Dunn points out, these are “variations within [the same] form of government.”²⁰¹ The selection is a matter of political choice.²⁰²

B.  Perfection: Metastructural Interpretation

Constitutional Essentials contrasts an originalist approach to rights interpretation, which ties conferral of constitutional protection of higher interests to their being “deeply rooted in this Nation’s history and tradition,”²⁰³ to a philosophical method. The philosophical method is grounded in the political conception(s), offering a normative basis for the interpretation of constitutional essentials and matters of basic justice. An understanding of constitutional essentials as deriving interpretatively from the principle of justice and the form of government adds to their firm grounding without endangering the appeal of the philosophical conception.

Consider the grounding of specific constitutional essentials. Take first judicial independence. While not specifically mentioned among Rawls’s list of constitutional essentials, judicial independence is implicit just below the surface.²⁰⁴ Is judicial independence a structural or a substantive constitutional essential? As an essential feature of the powers of the judiciary, it seems to fit under the rubric of structure. But as an indispensable feature of any conception of the rule of law, it is clearly also substantive.²⁰⁵ Consider next the right to vote, which Rawls lists explicitly as a constitutional essential.²⁰⁶ In a representative democracy, voting is a quintessential basic right that legislative majorities are bound to respect. But it is also one of the fundamental principles that specify the general structure of government and political process, so much so that, in Baker v. Carr, Justice Douglas found this unenumerated right “inherent in the republican form of government.”²⁰⁷ What about freedom of thought? Rawls lists it, understandably, on the list of substantive constitutional essentials.²⁰⁸ But its strong structural dimensions led Professor Charles Black to surmise that, even were the Constitution not to give it explicit textual support, such a right would exist as grounded structurally in the process of national government.²⁰⁹ Similar arguments about dual grounding can be articulated with respect to freedom to participate in politics, freedom of association, and indeed most if not all rights and liberties on Rawls’s list of substantive constitutional essentials.

In one sense, this dual grounding is unsurprising. The idea of grounding rights in structure is familiar in constitutional interpretation.²¹⁰ But recent decades have seen a narrowing of the relevant constitutional structure to the separation of powers and federalism.²¹¹ Critics have responded to this narrow interpretation of structure by calling for a broader approach.²¹² Political liberalism, in the interpretation I have presented, takes the form of government as the constitutional metastructure. A metastructural method of rights interpretation takes the form of government itself as the relevant grounding of substantive constitutional essentials. A constitutional theory of political liberalism asks of the political conception of justice what plexus of structural and substantive elements is essential to the constitutional democratic form of government.

To be sure, this question is not asked in the abstract, detached from the struggles of a particular democratic society. But context need not relativize the answer; if anything, it should enrich it. Consider, by way of example, the impact of this constitutional framing on the doctrinal fusion between equality and liberty, even beyond the sphere of constitutional essentials. Democracy is one ground on which advocates urged the Dobbs Court to recognize equal protection as either “an additional, independent basis”²¹³ on which to protect the right to abortion or as the source of equality interests existing alongside liberty interests under substantive due process.²¹⁴ In this view, claims of equal membership underscore how the power to make decisions on issues involving reproductive autonomy, including abortion, is a vital interest in the full and equal participation of women in the public sphere.²¹⁵ The Dobbs Court denied these claims, in the name of another conception of democracy that, at least on its face, makes the protection of an interest in having an abortion a matter not of higher law but of ordinary politics. To its critics, that is a “myopic”²¹⁶ or “cynical”²¹⁷ conception of democracy “without rights that protected the participation of those historically excluded from the democratic process.”²¹⁸ Insofar as this is an issue of conflicting interpretations of constitutional democracy, a liberal political conception of justice offers a normative account of the role and mechanisms of rights interpretation for a constitutional democracy’s fulfillment of its justificatory ambitions.²¹⁹

C.  Orientation: Comparative Constitutionalism

In the foreword to Constitutional Essentials, Michelman teases the reader to reflect if political liberalism might paint a picture “drawn from life” (p. xv). If one read that as reference to the political and constitutional practices and laws now in effect in the United States, Michelman’s study of Rawls has some surprises in store. At least in some respects, other constitutional democracies have heeded more closely the call to justification of political liberalism. While the U.S. Supreme Court has been inching ever closer toward a dogmatic, even “imperial”²²⁰ court, courts from Canada to Brazil and India have been experimenting with weak-form judicial review or other forms of dialogical engagement or remedial measures that allow judges to build the trust upon which depends their capacity to deliver institutional settlements.²²¹ Constitutional courts in Latin America, most daringly in Colombia, have been engaged in genuine, good faith efforts to work out a regime of justiciable social and economic rights.²²² Similarly, the horizontal application of constitutional rights has shaped the constitutional domain in Germany and South Africa.²²³

From a static perspective, these examples reveal differences between the constitutional orders of democratic societies. And were constitutional legitimacy tied exclusively to the constituted authority of the people, to their regulatory mandates, such static reverie might write the story line of a cultural logjam. But it does not. Political liberalism shows that the justificatory mission of constitutional law is an indepen­dent vector in shaping democratic societies. It is an inherently dynamic, normative force that iteratively puts the terms of collective life to the test of reason. Justification sets constitutional law to “go visiting,”²²⁴ always returning, courtesy of the regulatory function, and hopefully better able to expose which of a society’s contingent practices and traditions should not be relied upon to justify the exercise of political power. Justification pushes toward openness and engagement with the practices, doctrines, and discourses of other democratic societies who share in the same form of government.²²⁵ The question is if a constitutional theory of political liberalism can articulate a transjurisdictional framework, perhaps analogous in nature to Professor Bruce Ackerman’s transtemporal idea of intergenerational synthesis,²²⁶ where the experiments in constitutional self-government of one liberal constitutional democracy have normative weight for other political societies.

Perhaps owing to its philosophical roots in social contract theory,²²⁷ justice as fairness provides only a partial solution to the interaction of constitutional orders.²²⁸ Defining it as a problem of extension,²²⁹ Rawls aims to address it sequentially: first, Political Liberalism works out the political conception of justice at the domestic level,²³⁰ and then The Law of Peoples extends the political conception to the international order through an account of the “foreign policy of a reasonably just liberal people.”²³¹ The difficulty, however, is that approaching the transnational exclusively through the lens of foreign policy obscures dimensions of normativity that flow from interactions among the constitutional orders of liberal societies. The examples listed above, from the horizontal application of constitutional rights to the constitutionalization of social rights and far beyond, exist on a normative dimension of lateral integration of constitutional orders that moves far beyond foreign policy.

Nevertheless, whatever its limitations of scope, the contractualist tradition, at least in the Kantian tradition that Rawls continues, includes a core insight regarding the form of government that helps theorize the lateral integration of constitutional democracies. The first definitive article of Kant’s Perpetual Peace addresses the domestic organization of the plurality of states, and specifically their form of government. “The Civil Constitution of Every State shall be Republican,”²³² Kant proclaims as the domestic imperative that, alongside international and cosmopolitan law, forms his tripartite account of public law.²³³ Similarly, Rawls writes that “[t]he crucial fact of peace among democracies rests on the internal structure of democratic societies.”²³⁴ But both Kant and Rawls fail to theorize that once these constitutional republics come into existence, they might find themselves, depending on the historical circumstances, under internal normative pressures to interact with one another in ways that are relevant to the normative dynamic inside of each.²³⁵ Nevertheless, political liberalism has the resources to trace that normative pressure to the imperative of justification.²³⁶ It is, thus, the justificatory function of constitutional law that maps this transnational constitutional domain and guides its comparative methods.

Consider, finally, as a thought experiment, a cosmopolitan political conception of justice, as part of the larger family of liberal conceptions. In this conception, a modified liberal principle of legitimacy states that the exercise of political power is proper when it is exercised in accordance to constitutional essentials, whose meaning is subject to comparative filtering. One aim of the comparative approach, at least in its idealized form, is to assist with immunizing the interpretation of peremptory norms from contingent, possibly comprehensive, meanings that do not stand the test of public reason.²³⁷

Conclusion

The existence of a justification deficit in American constitutional law, or in the legal system of any other democratic society for this matter, does not show that political liberalism is not “our law.”²³⁸ As Constitutional Essentials instructs, our law is more than just the set of rules currently in force. Shaping that law, and an integral part of it, are other forces, justificatory in nature, that seek, with more or less but never with full success, to direct and redirect the legal system ever closer to fair terms of political and social cooperation among citizens who are free and equal. Never wavering from understanding reasonable pluralism as part of the circumstances of politics — “[o]nly ideologues and visionaries fail to experience deep conflicts,”²³⁹ writes Rawls — is another way in which political liberalism is a form of humanism.

Having considered the project of political liberalism — its question, method, and solutions — we could, of course, still decide to reject it. We might remain unconvinced that “politics admit[s] of general truths.”²⁴⁰ Even if it did, perhaps the teaching of political liberalism, that reasonableness is the name for truth in politics, is too unsettling for us to accept. Some of us, as the news cycle suggests, might reject any need for compromise in politics. Others will recoil into whatever jurisprudential pastiche, bricolage, or pale minimalisms they find next at hand. Either option, I fear, only buys us front-row tickets at the vaudeville of our closing political act. If that should be where we decide to take next our adventure in constitutional self-government, let the record reflect that we can put no blame for our choices, and our fate, on John Rawls — or on Frank Michelman.

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* Professor of Law and Dean’s Distinguished Scholar, Boston College Law School.  For helpful comments, I am grateful to Paulo Barrozo, Alessandro Ferrara, Martin Loughlin, Aziz Rana, and Katharine Young.