Incompletely Theorized Agreements in Constitutional Law

Cass R. Sunstein Incompletely Theorized Agreements in Constitutional Law IN MANY NATIONS, CITIZENS MUST PROCEED IN THE FACE OF CONFLICT and disagreem ent on the m ost fundam ental m atters. The existence of diverse values seems to threaten the very possibility of a constitu­ tional order and social stability. People disagree on rights, on the good life, on equality and liberty, on the nature and the existence of God. How can constitutional decisions be feasible in these circumstances? The problem m ight seem especially serious for dem ocratic societies, w hich aspire to self-governance am idst a great deal of heterogeneity. In this essay I deal w ith two issues—constitution-m aking and consti­ tutional interpretation—in an effort to m ake some progress on that question. My basic suggestion is that people can often agree on constitu­ tional practices, and even on constitutional rights, w hen they cannot agree on constitutional theories. In other words, well-functioning consti­ tutional orders try to solve problems through incompletely theorized agree­ ments. Sometimes these agreem ents involve abstractions, accepted as such amid severe disagreements on particular cases. Thus people who disagree on incitem ent to violence and hate speech can accept a general free speech principle, and those who argue about same-sex relationships can accept an abstract antidiscrim ination principle. This is an im por­ tant phenom enon in constitutional law and politics; it makes consti­ social research Vol 74 : No 1 : Spring 2007 1 tution-making possible. Constitution-makers can agree on abstractions w ithout agreeing on the particular m eaning of those abstractions. But som etim es incom pletely theorized agreem ents involve concrete outcomes rather than abstractions. In hard cases, people can agree that a certain practice is constitutional, or is not constitutional, even w hen the theories th at underlie their judgm ents sharply diverge. In the day-to-day operation of constitutional practice, incom pletely theorized agreem ents on certain rules and doctrines help to ensure a sense of w hat the law is, even am id large-scale disagreem ents about what, particularly, accounts for those rules and doctrines. This latter phenom enon suggests a general strategy for handling some of the most difficult decisions. W hen people disagree or are uncer­ tain about an abstract issue—Is equality more im portant than liberty? Does free will exist? Is utilitarianism right? Does punishm ent have retrib­ utive aims?—they can often make progress by moving to a level ofgreater particularity. They attem pt a conceptual descent. This phenom enon has an especially notable feature: it enlists silence, on certain basic questions, as a device for producing convergence despite disagreement, uncertainty, limits of time and capacity, and heterogeneity. In short, silence can be a constructive force. Incompletely theorized agreements are an im por­ tant source of successful constitutionalism and social stability; they also provide a way for people to demonstrate m utual respect. Consider some examples. People may believe that it is im portant to protect religious liberty while having quite diverse theories about why this is so. Some people may stress w hat they see as the need for social peace; others may th in k that religious liberty reflects a princi­ ple of equality and a recognition of hum an dignity; others may invoke utilitarian considerations; still others may think that religious liberty is itself a theological command. Similarly, people may invoke m any differ­ ent grounds for their shared belief that the Constitution should ensure an independent judiciary. Some may think that judicial independence helps ensure against tyranny; others may believe that it makes govern­ m ent m ore democratic; still others may think that it leads to greater efficiency in economic terms. 2 social research The agreem ent on particulars is incom pletely theorized in the sense that the relevant participants are clear on the practice or the result w ithout agreeing on the m ost general theory that accounts for it. Often people can agree th at a rule—protecting political dissent­ ers, allowing workers to practice their religion—makes sense w ithout entirely agreeing on the foundations of their belief. They may accept an outcom e—affirming...