It was wonderful to read Kathy’s opening essay for our conversation, for I think we hold some key commitments in common, as well as some applications of those commitments as to how we should think as Christians about politics, the common good, and the Constitution. We have some differences as well, to be sure, but I think we will be able to explore our common ground and any differences in helpful ways. In the remarks that follow I will express my agreement with many of Kathy’s observations, articulate a potential area of disagreement, and raise some questions about judges and critical theory that may further illumine our different approaches to our topic.
I want to first register how pleased I was to find that in many ways each of our essays presented a similar conclusion, albeit argued in rather different ways. Without communicating beforehand, we each proceeded to cast strong doubts on an understanding of the Supreme Court as the most important and near-infallible authority for the meaning of justice and the American political tradition. Neither of us believe that Supreme Court jurisprudence, despite the robes and the Greek columns, delivers for us unalloyed wisdom from on high that we as good citizens must accept without question.
I found Kathy’s call for a “double consciousness” regarding the Constitution to be persuasive, and her account of how Christian faith informs a hermeneutic of suspicion moving, even if I may not be suspicious enough for her liking. It seems to me that Kathy is rightly motivated by a concern for how law affects actual people, and her exemplars are those who cry out for justice for the least of these. Moreover, we do well to remember the pervasiveness of sin and its seeping into every human institution no matter how lofty or respected. Kathy’s piece reminded me that the law was made for men and women, not men and women for the law, and without love, understood as a conscious commitment to the good of another, duly enacted laws, constitutional doctrines, and well-reasoned opinions are only noisy gongs and clashing symbols.
Kathy’s treatment of the law in Scripture also points to an area of agreement. The application of law gives life, and it can take life. Psalm 19 describes law as God’s blessing to His people. But at the same time the law was powerless to save (Romans 8:3), and in fact condemns us (2 Corinthians 3). On a different level, the Constitution as a human political document gives us both evil and good. The Constitution that gave us the fugitive slave clause also gave us what Martin Luther King called the “great wells of democracy which were dug deep by the founding fathers . . ..” We recognize the reality of the Fall and so we should be grateful for what law can do to provide for the common good. We also know that men and women are created in God’s image, and we lament the failure of the law to cultivate human flourishing. We cry out when the law doesn’t merely fail to promote the good, but actively afflicts image-bearers with injustice and cruelty. Our attitude toward law reflects our life together in this in-between-but-not-yet season of God’s providence.
I can also agree in part and disagree in part with Kathy’s invocation of critical legal theory, feminist legal theory, and critical race theory. It is certainly the case that no one of us enjoys a view from nowhere, completely objective and untouched by our identities or perspectives. We cannot hide behind a veil of ignorance and claim an unbiased view of the platonic form of justice. We are, all of us, affected by the Fall. We are affected by our place in society, our family background, our gender, age, faith commitments, history, and the list goes on. These critical perspectives from the academy can disabuse any of us who still thinks that we can attain a version of Cartesian certainty about the law or any other subject.
What I find puzzling about these critical theories is trying to determine what help they can be in doing more than tempering overly optimistic rationalist accounts of law. I have no problem accepting that every author has interests and may be, consciously or not, exercising and pursuing her power in writing. This is true whether the authors are framers of a Constitution, Supreme Court justices interpreting that Constitution, critical legal theorists, or Kathy and myself. The observation about the ubiquitous presence of power dynamics strikes me as fine as far as it goes. But such dynamics have to be able to co-exist with genuine insights into justice and truth, or the critical legal theorists have a self-referential puzzle to tease out, namely how their own power interests do not vitiate their claims to accurately describe how legal discourse operates for everyone else. If they expect me to assess their claims to accurately describe the legal landscape despite their own wills to power, then it seems that others can rightly expect the same cautious reception.
My area of disagreement, or perhaps puzzlement, then, with Kathy’s affinity with these critical theories lies in how these approaches would inform judicial and political decisions about the common good. If we were to have another Constitutional Convention, of course we would want it to be much more representative than the one held in Philadelphia in 1787. I couldn’t agree more that a new Constitutional Convention would be terribly unjust if it was as restricted as the previous one, and did not include those whose voices have historically not been empowered.
What I’m not sure about is what we think would emerge from these groups, as groups. That is, I’m not sure what it means to say there’s a meaningful “women’s” perspective on politics. Even as a man I think I can confidently predict the political leanings of most feminist legal theorists, but I’m dubious that their privileged perspective would line up with American women generally. In the case of abortion, listening to the perspectives of women would mean hearing the voices of Hilary Clinton and Carly Fiorina, Nancy Pelosi and Mia Love.
I think we should listen to women’s voices, and women should be included in the “we” that is doing the listening. But it is obvious that women are divided about many political issues. Whatever women bring to a particular issue as women seems to be as susceptible to the same disagreements about justice and the common good that divide men. Thus while I firmly agree that the exclusion of women from voting and office-holding in the past was unjust, and women’s voices must be heard now, I don’t know what it would mean for a judge to consider women’s voices as such. One would need to fall back on discerning whether the reasons offered for this or that position truly advanced justice, and only secondarily on the gendered nature of the persons offering those reasons falling on opposite sides of an issue.
Perhaps a better case could be made for a racial perspective on political issues, given the overwhelming support that African Americans have given in recent years to the Democratic party. Yet this seems to run into difficulties as well. If what counts is a common history of belonging to an oppressed group, then one is faced with either distinguishing between the incommensurable political views of President Obama and Justice Thomas, or determining that one of those two African-American men cannot genuinely speak from the African-American experience. That is not a savory task. Or to consider this difficulty as applied to a particular issue, how does one determine the African-American perspective on same-sex marriage when opposition to same-sex marriage has risen in the last year to over two-thirds of the African-American community? Are the 33% of African-Americans who favor same-sex marriage mistaken about the black view? It’s also unclear how a judge would balance between the views of two different historically unrepresented people groups even if one could somehow determine what counted as the representative view.
One common way that some critical theorists account for the diversity of views within a given people group is to attribute deviance from what is considered the genuine position to a phenomenon called false consciousness. If the genuine feminist should support abortion rights, then the self-identified pro-life woman has been hoodwinked by powerful forces whose interests she should oppose. If the genuine African-American position favors an expansive role for the federal government, then African-Americans who favor limited government have unconsciously adopted the mindset of those who do not have their best interests at heart. I want to be clear that I am not saying that Kathy would embrace this practice of attributing intellectual diversity to false consciousness. Doing so makes conversation almost impossible because one doesn’t argue about why a position is mistaken, but rather about the psychological or ideological motives behind the person’s taking the position in the first place. Yet barring a resort to false consciousness, I’m not sure what specific political wisdom or positions one can expect from listening to various people groups defined by what Kathy refers to as socially constructed identities.
What I’m getting at here is the distinction between calling for the inclusion of all sorts of different voices in our politics, and thinking about who can legitimately speak on behalf of those different voices. I could not agree more that we should hear from everyone, and particularly those who have not been the “winners” in our society. I am doubtful, however, that members of the judiciary have the ability or the warrant to do so. And this is the link to my argument in my opening piece.
The Supreme Court was not designed to represent the people of the country, and given the difficulties I’ve mentioned, it’s hard to see how it could. As Justice Scalia pointed out in his Obergefell dissent, the nine current justices all attended Yale or Harvard for law school, eight of the nine are from the coasts, four are from New York City, none are from the Southwest, and none are Protestants. Moreover, given the pervasive nature of sin, even if we could conceive of the most representative composition possible for the Supreme Court, and even the lower courts, they would continue to get things wrong time and time again.
If judges are not equipped by their training or office to speak on behalf of the various constituencies in the country, who is? As I suggested before, the answer is public servants who must compete in order to win the votes of citizens so they can serve in the legislature. This is not to say that legislatures always get things right. Far from it. But there is no human institution free of that liability. And unlike judges, the very purpose of a representative is to represent her constituents, who can throw her out if they judge that she has not taken their concerns seriously enough.
I agree with Kathy that we cannot trust judges to arrive at completely unbiased and objectively fair conclusions in their deliberations about constitutional questions and controversial policy matters. I don’t pretend that legislators always get it right, nor that our Constitution is a flawless document. It is, however, the system that we have, and a system has included within it a “promissory note” that has expanded opportunities for a flourishing life to more and more people. That system puts the power to make decisions about the issues that define us into the hands of those most immediately responsible to the people.