Abstract
This paper aims to contribute to the debate about the legitimacy of judicial review. By relying on Bernard Williams’ ideas about reasons for action it aims to provide an additional argument to question the moral-political legitimacy of the practice of judicial review. In short, Bernard Williams’ ideas on internal reasons should be useful to better construct an argument against the legitimacy of judicial review. If only internal reasons can provide reasons for action, and only those reasons in a person’s motivational set do provide such reasons, there isn’t much hope on a text of a constitution providing external reasons to judges who decide on the meaning of a constitutional provision. But as William’s himself points out, a motivational set might be subject to change, if the person is shown why she should adopt into it a concrete reason. As I will argue, this process of deliberation in a pluralist society makes sense in a democratic arena rather than in a courtroom.
“It would be a mistake to equate political thought about questions of principle with thought about actual or ideal constitutional interpretation. We and our political opponents—even our opponents in one polity, let alone those in others—are not just trying to read one text.” Bernard Williams, From Freedom to Liberty
This paper aims to contribute to the debate about the legitimacy of judicial review. By relying on Bernard Williams’ ideas about reasons for action it aims to provide an additional argument to question the moral-political legitimacy of the practice of judicial review. In short, Bernard Williams’ ideas on internal reasons should be useful to better construct an argument against the legitimacy of judicial review. If only internal reasons can provide reasons for action, and only those reasons in a person’s motivational set provide such reasons, there isn’t much hope for the text of a constitution providing external reasons to judges who decide on the meaning of a constitutional provision. But as Williams himself points out, a motivational set might be subject to change “if the person is shown why she should adopt a concrete reason for doing so.” As I will argue, this process of deliberation in a pluralistic society makes sense in a democratic arena rather than in a courtroom.
The conclusion of this paper supports the approach of political constitutionalism, while providing a missing explanation from the moral psychology which enables political constitutionalism. Political Constitutionalism is committed to protecting citizens’ rights while rejecting the legitimacy of judicial review for resolving disagreements over the scope and content of rights. Political Constitutionalism argues that if democratic societies are committed to value pluralism, 1 disagreements over the content and scope of rights should be settled through procedures that “treat participants equally, and give each expressed opinion the greatest weight possible compatible with giving equal weight to all opinions.” 2 These criteria, Political Constitutionalism contends, are best satisfied through well-functioning democratic processes of decision-making, such as referenda and legislative debate, where citizens can equally participate and influence political decision-making, and are treated with “equal respect and consideration.” 3
According to Political Constitutionalism, judicial review is antithetical to the commitments of equal respect and concern in political decision-making. Judges, at least implicitly, hold a superior status to individual citizens in the decision-making process, and they have no incentive to adopt the individual perspectives of ordinary citizens. 1 , 4 Judges are at the top of a hierarchy where their authoritative decisions can replace those democratically made by citizens or by their democratically elected representatives. 5 However, Political Constitutionalism acknowledges that democratic decision-making processes can fail. In well-functioning democracies, laws can be challenged, repealed, and amended by democratic means. 6 Thus, for these versions of Political Constitutionalism, the failures of democratic decision-making can and should be corrected in the political arena. Some other versions of Political Constitutionalism accept a subsidiary role for judicial review in cases where democratically made decisions constantly endanger the interests of persistent and insular minorities. In such cases, judicial review, with its counter-majoritarian character, can serve as a remedy to democratic pathologies. 7
While this paper shares the egalitarian teleology of political constitutionalism, it departs from Waldron and Bellamy as it sheds light on the moral psychology that makes political constitutionalism a better contender over its rivals: legal constitutionalism and moralized adjudication. This paper thus, from a moral psychology point of view, will explain why political constitutionalism makes sense as a better explanation of how we resolve our political disagreements in pluralist societies. At the same time, and different from Waldron’s well-known argument, it will demonstrate that metaethical discussions are at the center of our better understanding of political disagreements and decision-making.
Setting the Stage: The Motivational Problem
Constitutional and Supreme Courts decide upon topics which matter to their putative subjects. Different members of a polity have different views over issues settled by judicial review: abortion, same-sex marriage, the scope of the obligations regarding environmental protection, campaign financing, etc. While the courts’ members claim that the constitution’s text resolves these disagreements, citizens often express discomfort with this reasoning—which I will refer as plain legalism.
Plain legalism is of course an oversimplification. Most theories of adjudication will concur in the fact that constitutional clauses, especially those framed in moralistic terms (such as rights and constitutional principles) instantiate disagreement. Some theories, arguing against plain legalism, claim that interpreting these clauses implies that judges must engage in moral deliberation. 8 Some nuanced versions of plain legalism argue that there are hard cases where the law runs out, and then judges must engage in political and or moral deliberation, or some sort of policy-making. 9
This paper does not seek to solve the debate between legalists and moralists. Its main aim is to provide an explanatory account of the internal deliberation undertaken by judges when deciding upon hard constitutional cases. It is important to clarify that this paper will focus on a particular sort of legal interpretation practice, the one made within strong judicial review. Such a practice entails the power of a constitutional or supreme court to strike down legislation duly passed by the legislature.
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Such a decision has the final word within the legal system, as it cannot be overridden by the legislature through ordinary law-making procedures. It is also important to qualify the scope of the objection as well. The following analysis focuses on those cases where courts decide to rely on abstract and moralized constitutional provisions—such as rights or principles
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—as the standard of control that legislation must meet to pass muster.
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To make these assumptions clearer consider the following case: Constitutional Clauses: “The right to life is inviolable. There shall be no death penalty” – “The state will defend the human dignity and autonomy of all persons.” Judge A: Judge A must decide whether abortion should be freely permitted up to 6 months of pregnancy. She has been a private law practitioner all of her life. She does not practice any religion. She tends to identify with liberal policies, but has no strong views on abortion. In fact, she tells her clerk that she is not expecting any particular outcome from their first draft. Judge A’s daughter is a women’s rights advocate. She is really close to her mom. On several occasions she has brought up the importance of this topic during dinner at home. Clerk P: P has been asked by Judge A to draft the opinion that she will present to her fellow judges at the Court. P considers clerking at the Court as a once in a life-time professional opportunity. He comes from a humble background and has worked hard to get to the Court. P is a devout Catholic. He attends mass every Sunday, and in general, agrees with the moral stances of the Catholic Church. Clerk P wants to follow an academic career. He wishes to apply to scholarships and to pursue a Ph.D. once his clerkship at the court is over. For these applications, a letter of recommendation from the Judge will be necessary.
Clerk P drafts an opinion in favor of decriminalizing abortion up to the 6th month of pregnancy. Judge A only makes minor revisions to the draft which she puts forth for her fellow judges’ consideration. What were the reasons which motivated Clerk P and Judge A to reach this decision? A pure legalist will have to claim that there was a reason in the constitution for both of them to reach their decision, thus accounting for there being some sort of external reason which motivated this action. Precisely, is the constitution, and some sort of moral deliberation entailed by it is what does most of the work to explain their decision-making.
This paper will argue that the purely legalistic account cannot do much of the explanatory work in these hard-constitutional interpretation cases. For instance, it will demonstrate that it is both Judge A’s and Clerk P’s subjective motivational sets which better explains their reasons for action, rather than there being an external reason for them provided by the constitution. As a result, this paper will explain how the idea of internal reasons for action 13 can do better explain the deliberation required for constitutional interpretation over the legalistic approach.
The second theoretical commitment of this paper regards the role of what “people care about”
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—to use Frankfurt’s terms—plays in their internal motivational sets. Instead of arguing that a commitment to legalism, or a commitment to some moral standards takes the central role in constitutional adjudication, this paper will argue that the best explanation for some constitutional decisions come from what judges care about. Thus, rather than an idealized internal motivational set shared by all rational agents, the idea of a subjective motivational set, shaped by one’s cares and concerns, provides a better explanation.
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People’s motivational sets are first shaped by what they love
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and ultimately determines their life projects, as well as by their beliefs, prejudices, and propositional attitudes more generally. With this in mind, the following reasons should make sense as an explanation of Judge A and Clerk P decision-making process: Judge A: Her decision-making regarding the decriminalization of abortion is better explained by her caring for her daughter. More concretely, by loving her daughter, Judge A identifies with her daughter’s causes,
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and supports her life plans as if they were her own. Clerk P: His decision-making regarding the draft of the decision is better explained by his commitment to pursue an academic career and find whatever means required to achieve his goals.
In fact, in Judge’s A deliberation—her caring about her daughter’s cause and identifying with her cause out of love for her daughter—provides an explanation for how she comes to understand an opened-textured constitutional clause in a particular way. In the case of Clerk P, his caring for his academic path better explains the way he drafts the decision for the Judge. His particular moral views (Catholic-conservative) are outweighed by his personal projects. His desire to pursue an academic career stands as a categorical commitment. Thus, its pursuit takes priority in what he cares about. This paper will concur with Williams on the idea that agents have these categorical commitments when their personal projects are not dispensable; these commitments then confer meaning on an agent’s life, 18 and to a certain degree, they make up the conditions of the agent’s interest in continuing to live. 19
This simple experiment illustrates that the internal motivational sets defined by what those interpreting the law care about better explain their decision making. It is important to note that the argument of this paper will be restricted to cases where the following assumptions hold: (i) decisions made within the practice of strong judicial review; (ii) the decisions must solve hard constitutional cases, where reasonable disagreement is not only expected but instantiated by moralistic or abstract clauses (“hard constitutional cases”); and (iii) the decisions are made within a context where the judges enjoy some discretionary power within the practice of constitutional interpretation and decision-making. 20 In order to delineate the argument, this paper will first critically explain the idea according to which there are reasons in the constitution to foreclose decision-making in these hard cases. Secondly, the paper will argue that the idea of internal reasons provides a better explanation of the reasons which lead to a particular outcome in a hard-constitutional case. Finally, the paper will answer some objections.
The Basic Constitutional Assumption: External Reasons
When a hard-constitutional case is decided citizens ask “why did the court decide in a such way?” The usual simple answer is that courts are applying the constitution. It is the constitution that gives reasons for action for the judges in a constitutional or supreme court. In fact, judicial review derives its legitimacy in being part of a constitutional project—either by textual entrenchment or interpretation. As for the moralized standards that the courts use when engaging in the practice of judicial review, they are entrenched into the constitution as rights or principles, and it is the duty of the courts not only develop and apply them, but also to protect them.
The answer as to why the court decided in a particular manner is quite similar to claiming that there was a reason for the members of the majority of the court to decide in such a way. This resounds with a formulation for there being a reason for a subject to Φ. Bernard Williams claimed that this proposition has an externalist flavor. “There being a reason” for a subject to Φ entails that there is something outside the agent’s psychological system or own motivational state that can explain her behavior. There being a reason for someone to Φ entails then that she conformed her behavior to those reasons that are independent of her mental states and her own desires.
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Applied to constitutional interpretation, the answer to why a judge decided in such a way because of the constitution, entails claiming that the constitution provides reasons for action which are independent of the judge’s mental state or desires. The action of such interpretation of the constitution is thus a matter of grasping those independent reasons and conforming her behavior to them. This explanation, which is common to constitutional theory, can be summarized as follows:
The BCA provides an incomplete explanation of why judges or clerks reach a decision in hard constitutional cases. It is a truism that constitutional rights and principles instantiate disagreement. 22 The constitutional standards might foreclose some questions, such as which rights are protected by the constitutional project, but not the concrete content of such rights and principles. By following Raz, this paper will assume that these sorts of rights and principles are “directed powers.” 23 They instruct the judges to engage in moral deliberation in order to interpret and apply them to concrete cases. Raz’ argument is sound for at least two reasons. The practice of judicial review assumes that constitutions claim practical authority, and that those engaged, or at least pretending to be engaged, in the practice of judicial review are the addressees of such authority. Second, even if the state authorities in charge of the practice of judicial review agree on the constitution’s claim to practical authority, they disagree on the content of the reasons that the constitutional clauses provide in exercise of this practice. Note, however, that this argument only explains the terms in which the practice of constitutional interpretation is set.
Relying on the BCA only explains that there is a text to be interpreted, but cannot explain why judges decide substantively in a concrete way. As the case of the beginning of this paper showed, it explains that judges are trying to apply clauses regarding autonomy and the right to life, but fail to provide an explanation as to why Judge A and Clerk P understood such clauses in a particular manner. On the other hand, the directed powers argument provides also an incomplete explanation. Given the fact of disagreement, it will be hard for citizens to agree that Judge A and Clerk P were directed to some sort of moral deliberation which necessarily led to a particular result. The discomfort that these explanations provide call to attention the fact that there is more to be considered in the process of interpreting the constitution. What is missing in the explanation is precisely what the idea of internal reasons can provide.
Bernard Williams Argument for Internal Reasons for Action
The Basic Argument
Bernard Williams famously defended the view that there are only internal reasons for action. If there are only internal reasons for action, the argument that constitutions provide external reasons to judges which are capable of motivating them to act it is hard to sustain. The internal reasons thesis (IRT) thus poses a threat to the BCA argument. If there are only internal reasons for action, judicial review is a practice where judges are deciding based solely on their internal motivational set (S), a set which includes desire-like reasons, beliefs, prejudices, etc., and overall, the cares and concerns of the persons involved in the deliberative process, but renders the constitutional text highly irrelevant. Furthermore, if the argument by Williams is true, it would challenge the idea that constitutions have practical authority—rather, they should be seen as having theoretical authority, 24 and thus provide reasons for belief that at best can motivate judges or constitutional interpreters, but only insofar as they become part of the judges’ or interpreters’ S.
According to Williams’ account of internal reasons, the propositions: “A has a reason to Φ,” or “there is a reason for A to Φ,” only make sense through an internalist interpretation. The internalist interpretation he defends claims that: “A has some motive which will be served or furthered by his Φ-ing, and if this turns out not to be so the sentence is false.” 25 In Williams’ view, it is a necessary condition for an agent’s action to be the result of some motivation that the agent has. Actions must further an agent’s “aim,” and it is precisely this aim which can provide the necessary motivation to undertake an action. This claim opposes the externalist interpretation, which according to Williams removes the internal motivation as a necessary condition for an agent’s actions.
Williams wants to highlight that having a reason to Φ requires motivation, and such motivation in his view can only come from the subject’s internal motivational set (S). Williams goes beyond Hume when defining a motivational set. While in the Humean version, S is made up of desire-like reasons, for Williams’ it goes further to include beliefs, prejudice, and propositional attitudes more generally. The conjunction of these beliefs, prejudices, propositional attitudes, etc., is what better explains why a subject is motivated to take some particular action. As will be explained later, an internal motivational set can be better explained in terms of what an agent cares about, 26 in the sense that she takes it to be important in her life, as well as in the “economy of esteem” 27 : what she expects to project to others, and how she strives to be regarded by others.
Williams’ own example can be useful to illustrate this point. 28 Owen Wingrave’s father urges him to join the army, stressing its importance and necessity because all his ancestors were also in the military. This is a matter of great pride for his family. Owen, however, is not motivated at all to join the army—he hates absolutely everything having to do with the military life and what it means. This example illustrates the contrast between external and internal reasons. Owen’s father is taking an externalist approach: he is trying to convince Owen that “there is a reason for Owen to join the army.” However, if Owen were to join the army, the existence of this reason will not explain the psychological link of why he took this particular action. As Williams claims, “the whole point of an external reason statement is that they can be true independently of an agent’s motivation,” but without motivation Owen would not have joined the army. If Owen Wingrave joins the army because he believes that his family’s military tradition is a reason for him to do so, then there is an internal motivation: Owen believing that honoring family tradition is important to him. As a result, the apparent flavor of “there is a reason for Owen to join the army” only triggered action because of Owen’s internal motivation.
It is possible here to start to propose how this framework might be applied concretely to the practice of judicial review. Recall the case of Judge A. She is rendering an opinion on whether, via interpretation, the right to autonomy entails a right to abortion. Clerk P tells the judge that she has a reason to deliver an opinion favoring the decriminalization of abortion because the constitution has a broad clause protecting freedom. The semantic framework: There is a reason [provided by the constitution] for the judge to Φ, definitely has an externalist flavor. First, “there is a reason,” entails that it is independent of the judge’s beliefs. Second, the judge is deliberating on a value—autonomy—which a commitment to externalism would argue has independent content regardless of the judge’s subjective view. 29 Third, this proposition entails that the judge should be moved by those external reasons regardless of her own beliefs. But it is in the third move where problems for the externalist account arise. The externalist must maintain that this external reason moves the judge to act even in the case where she has absolutely no motivation or desire to interpret the constitution in this particular way. Even if the judge delivers an opinion which interprets a broad constitutional clause of autonomy as to mandate decriminalization of abortion, the external reason seems insufficient to explain the judge’s action.
One could argue that the judge delivered the opinion out of a belief (R): the belief that the constitutional clause which protects autonomy does have the content entailed by the shared interpretation of Clerk P and Judge A regarding abortion. But now there’s the question of whether or not beliefs motivate action. If beliefs cannot motivate action, then there isn’t much explanatory work to be done here. On the other hand, if it’s granted that belief motivates action, the belief becomes a motivation in A’s S, and is thus an internal reason—if beliefs are motivating for an agent, then they are part of the agent’s S; the belief that R is a reason is thus part of her S, and so R is an internal reason statement. The explanatory proposition here has an internalist flavor: Judge A has a reason to Φ. If the judge has a reason, it can be (i) the product of her S, and therefore, the explanation comes from an internalist account; or (ii) the reason could come from seeing that a sound constitutional interpretation requires a change in her S. In this sense, the explanation remains internalist. Coming to believe external reason statements is a way of incorporating new motivations into one’s S. In Judge A’s case, it is not the constitution itself which mandates the judge’s decision, but rather the belief that she has come to hold, or some other motivation that lies in her motivational set.
At this stage the constitutional clause of autonomy itself still fails to explain why Judge A and Clerk P proposed a certain interpretation of it. However, it is possible to claim that judicial review instantiates a deliberative process where their S are influenced in such a way that motivates them to make that decision. In fact, interpreting the constitution isn’t necessarily a formalistic enterprise, where the text of the law clearly forecloses the content of the decisions to be made. Rather, judges must consider opposing views, read amicus curiae with different stances, and so on. Constitutional interpretation requires that the judges engage in some deliberative process, and the result of that deliberative process leads judges and clerks to form their beliefs, or the necessary motivations in their motivational set. But this doesn’t pose a problem to the internal reasons’ explanation. This sort of argument actually is helpful to introduce a qualification to internal reasons proposed by Williams. Internal reasons statements can be discovered in deliberative reasoning. Furthermore, it is possible for an agent to be wrong in her beliefs about internal reasons statements, either because she doesn’t have some appropriate element in her motivational set, or because her internal reasons statement is the result of a false belief.
Deliberative reasoning in a judicial process can, in fact, help the judge to either correct some false belief in her motivational set, or add a belief or a necessary element in her motivational set that she currently lacks. There are several defects about internal reasons statements that can be straightened by the process of rational deliberation. In fact, there might be a false belief problem in the agent’s motivational set. According to this, an element of the subject’s motivational set (D) will not give the subject a reason for Φ-ing if (i) either the existence of D is dependent on a false belief, or A’s belief in the relevance of Φ-ing to the satisfaction of D is false. 30 There might be a deficiency in the agent’s motivational set, in which the agent lacks some appropriate element, and as a result her internal reason statement is falsified. A sound deliberative process will help the agent to at least correct errors in her knowledge of facts and reasoning. This deliberative process can be the process of unaided deliberation or encouraged by the persuasion of others. 31
Even if the deliberative process instantiated by judicial review influences the judges’ S in a decisive way, the constitutional clause of autonomy by itself cannot explain why the judge came to a concrete decision. The constitutional clauses of the hypothetical case of this paper do not provide by themselves Judge A and Clerk P with a conclusive reason for their decision on abortion. Within the deliberative process of judicial review several factual considerations along with legal arguments are put under the judge’s scrutiny. In the case of this paper, it is possible to imagine conservative groups and churches presenting their religiously oriented arguments about how to understand human dignity and the sanctity of life. From the opposite side, liberal think tanks and NGOs will present arguments in favor of abortion. Furthermore, women who have had access to abortion or fail to do so will present their testimonies before the Court. And certainly, politicians and different public stakeholders will also convene their arguments before the court. Most of them will provide factual considerations, other will present moral interpretations, while some others will be crafted in a legalistic fashion of precedents and existing laws. If Judge A and Clerk P come to believe in any of those arguments, it is the result of those becoming part of their S, and they will now play a role in their decision-making along with their prior existing internal reasons. Furthermore, the fact that Judge P and Clerk P internalize some arguments while discarding others can also be explained by their motivation to do so by their existing S. Once again, the constitutional clause by itself fails to be a reason for their motivation on rendering the opinion one way or another.
The arguments so far demonstrate that the explanation of why a judge and a clerk interpret a clause on a certain manner cannot be explained by there being a reason in the constitution which settles the matter. These arguments do not debunk the legitimacy of judicial review. However, the internal reasons argument poses a problem for defenders of judicial review: it explains that constitutional interpretation—in hard cases—is not an objective enterprise. The reasons that provide a motivation for a judge’s decision are better explained by her S, not by the constitutional text. Furthermore, it will help to illuminate that a judge’s decision cannot be fully explained by there being a constitutional clause, but rather by all the different components of her S.
The Internal Reasons Argument Against Judicial Review
The internal reasons argument not only better explains the problem of motivation that judges and clerks face within the practice of judicial review, but also poses a strong challenge to the legitimacy of the practice itself. Recognizing that only internal reasons motivate action, and that such reasons can be freely affected in a process of deliberation, sheds light on an egalitarian and democratic aspect of political decision-making that judicial review neglects. According to Williams, a sound process of deliberation can render unconstrained results on an agent’s motivational set. A sound deliberative process can help an agent come to see that she has reasons to do something which she previously thought she had no reason to do at all. The deliberative process can add new actions for which there are internal reasons, just as it can add new reasons for a given action. Furthermore, the deliberative process can change the agent’s motivational set. It can subtract elements that are currently in the agent’s motivational set as much as it can add new elements to it. In Williams’ own terms, “The processes of deliberation can have all sorts of effect on S, and this is a fact which a theory of internal reasons should be very happy to accommodate.”
It will be hard for the defender of judicial review to be able to sustain that it is desirable that deliberation in the courtroom can have all sorts of effects on the motivational set of a judge.
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At least the pretense of the defender of judicial review is that judicial review is constrained by the constitution and previous judicial decisions, and thus judges either discover the true meaning or rightful application, or they err. The sort of deliberation in a courtroom is defended as a law-constrained one. The sort of deliberation described by Williams, with the ambitious possibilities of change in beliefs and internal reasons, seems more suited for political deliberation, where as a principle there are no winning cards marked before the game. As Williams highlights: In his unaided deliberative reason, or encouraged by the persuasions of other, he may come to have some more concrete sense of what would be involved [in taking an action], and lose his desire for it, just as, positively,
The second strand of Williams’ argument that poses a problem for the defender of judicial review comes from the egalitarian take on the deliberative process. Williams doesn’t assume that deliberation on things that matter requires a special process, nor a certain expertise to be able to undertake the sort of deliberation that can modify the agent’s motivational set or her internal reasons. However, flexible the deliberation process is, it nonetheless has some requirements. The agents must have in their motivational set an interest in being correctly informed and rationally motivated (although this might seem to be a high threshold given the current state of political affairs), but also, the defender of judicial review will have to provide a strong argument as to why judges are more likely to have this predisposition in their motivational set than any other member of society.
The egalitarian nature of deliberation resounds with Williams’ critique of constitutional interpretation in general, according to which deliberating about questions of principle cannot be equated with thought about actual or ideal constitutional interpretation. For Williams, deliberating on the principles we care about brings into the debate different views and different convictions on the ethical, and also the non-ethical domain, such as economic stances, prejudices for a given society, and the interests of one another. In short, any deliberation on constitutional principles demands to engage in deliberation about the reasons people share for living with one another, and make sense of these reasons, here and now, and in one way rather than another. 34 The answers to these questions hardly belong exclusively to lawyers for the reason of being experts in reading a legal text, but on the other hand, hardly lie in a written text, full of broad clauses that can easily accommodate different interests and ways of life. Williams himself was aware of this when he objected to a constitutional theory that divides political deliberation and constitutional judicial review as a “Manichean dualism of soul and body,” where the first is a low road, the pork barrel, while the second is the high road of high-mindedness, where rival elaborations of moral texts are under discussion. 35
It is important to note, however, that democratic deliberation and decision-making are also subjected to structural inequalities, as democratic theorists have called the attention. Current democratic designs, parliaments, and referendums, are deficient to channel a deliberative process where the motivational sets of individuals can be influenced by arguments, or by proleptic good reasons, 36 instead of by power, or force disguised by money and propaganda. However, as Landemore 37 has demonstrated, there are opportunities for democratic improvement that come from empowering citizens into setting the agenda of the public discussion, by deliberating among peers, and by making lay citizens the owners of their political decisions. 38 While this paper focuses on explaining the moral psychology that better explains our constitutional-decision making, it is also the bedrock for an egalitarian understanding of democratic decision-making. In short, if motivational sets are what condition political-decision outcomes, a true democracy requires to accommodate the motivational sets of most citizens, not just a privileged few.
Cares and Concerns: Considering Objections Beyond Williams’ IRT Argument
So far, this paper has been considering Williams’ primary text on IRT. However, there are nuanced versions of the IRT 39 which are useful for the project that this paper pursues. By relying on Finlay’s account of IRT this section will argue against the idea that constitutional interpretation can be explained in terms of the judge caring for the constitution. According to this idea, a judge qua her role as judge, must adopt into her S a care for the constitution and its meaning, which explains why she interprets the constitution in a certain way. Unlike Williams, Finlay concedes that there can be external reasons. In fact, moral reasons can be one sort. 40 There are moral reasons whether a subject cares or not about their existence. However, in favor of Williams’ IRT, Finlay claims that it isn’t enough for those reasons to exist in order to motivate action. A reason must be motivationally internal to motivate action: it has to be internalized by the agent, and considered important by her. In Finlay’s terms, such “internal motivation” comes from the fact that a subject considers those reasons as important. 41
The adscription of importance that an agent gives to an external reason comes from the subject’s cares and concerns. In this sense, following Finlay, even if there are external reasons, an agent’s motivation remains internal. 42 Those things that persons care about are explained more by their personal upbringing. 43 To explain what a person cares about, it is necessary to consider what they identify with and come to embrace as their life-project; that explanation cannot be provided solely from normative statements. 44 Of course, morality might inform the choice for these commitments, but there is certainly more to the mental process of a person incorporating into her S a reason as something she cares about.
The reasons that an agent internalizes and the subjective importance that she ascribes to them are central to the explanation of constitutional interpretation in judicial review. 45 Consider again the case of Judge A who is interpreting the scope of the constitutional clause of autonomy. It is possible to argue that there is a reason for her provided by the constitution, as judges should care and be concerned with the constitution, at least cynically. It is possible to go further and state that qua judge, she has adopted into her S a reason to take the constitution seriously and care about it. However, it is one thing to take the constitution seriously. This explains that her decision comes from her commitment to caring about the constitution. However, it is another thing to explain why she gave a concrete content to a broad clause of autonomy.
The fact that Judge A interprets the constitutional clauses in x or y manner is explained not by there being a reason for her in the constitution, but from her process of deliberating on the meaning of a moralized term such as autonomy. For the judge to decide that autonomy means x, there must be a motivation, and that motivation is not in the constitution but rather in the judge’s cares and concerns. Returning to the case of this paper, it is possible to say that even if there is an external reason in favor of making abortion legal, up to a certain week, what explains Judge A’s action are her internal motivations, and those motivations are the results of what she cares about.
Following this paper’s example, it is possible to state that external reasons about the morality of abortion are not sufficient reasons for Judge A’s actions. 46 In her deliberation, Judge A’s identification with her daughter’s life project plays a central role. Something similar can be said about Clerk P. For him, moral considerations do not override the other reasons that are motivating his actions. He clearly is concerned with his career goals, as well as with the economy of esteem, in this concrete case related to the image he wants Judge A to have of him when writing his letter of recommendation. Furthermore, in Clerk P’s case, his belief in the objectivity of the moral teachings of the Catholic Church, and thus its status as creating obligation, are not enough to override the centrality of his life projects. 47 Following Finlay, it is possible to state that cares and concerns as internal motivation are necessary but not sufficient conditions to motivate action. 48
It is important to note that caring for the constitution is an additional care that the judge displays when interpreting a constitutional clause. When a judge is engaged in the practice of constitutional interpretation she frames her argument in a legalistic way. She displays her decision as following the text of the constitution, the existing precedents, and the facts presented to her in the judicial process. The argument of IRT defended in this paper can concede that this care plays a role in the judge’s decision, but it is not a sufficient reason for her to understand the substance of the constitution’s clause in a particular way. A commitment to caring for the constitution only explains that the judge presents her arguments either because of an honest commitment to comply with the social practice, or strategically to avoid a backlash if her decisions are perceived as purely political. 49
Williams’ IRT argument paired with the idea of cares and concerns sheds light on how constitutional interpretation cannot be explained solely in moralist or legalistic terms. If interpreting the rights and principles of the constitution is merely a matter of moral deliberation, it will be necessary to assume that morality itself necessarily provides motivation for an agent. As to the legalistic argument, even if it is assumed that a judge qua judge must incorporate to her S a reason to care for the constitution, it only explains why she delivers her ruling under the guise of legal jargon, and as framed within the social practice of legal interpretation. Legalism cannot provide a sufficient explanation of the content of the judge’s decision. Alongside the moralist and legalistic considerations, there are other reasons within the Judge’s S which must be considered when asking why she substantively interpreted a constitutional clause in one way and not another.
IRT: An Opportunity for Democratic Theory
Judicial review can demonize political debates. As Williams claimed, there is a difference between treating those who disagree as opponents and treating them as mistaken arguers who are also simply seeking the truth difference between treating those who disagree as opponents, and treating them as arguers who are simply mistaken or as fellow seekers after truth. The first entails that those who are defeated after a political decision simply “have lost,” while the latter entails treating the defeated side as morally wrong. 50 If constitutional interpretation in many respects engages with the things people care and have concerns about, when such interpretation goes against what they take to be their cares and concerns, telling them that they are morally wrong because “there is a reason for them” in a broad provision of the constitution—that they can’t grasp, or denouncing them as irrational—is hardly a good answer. From Finlay’s account, it is easier to see that it is important to consider not only the source of the motivation for the judge, but also, that she is deciding upon matters that deal with the concerns and motivations of others. 51
Understanding constitutional interpretation in this way entails engaging with the cares and concerns of citizens, and the uncertainty and creativity of politics might be an easier arena for this engagement. It is a scenario where citizens can express their different cares and concerns, strive to try to understand them, and in a fair procedure decide which ones will take precedence in their living with one another. Furthermore, it is a scenario where citizens and their representatives can frame their arguments as expressing their cares and concerns, rather than demanding some legalistic forms which foreclose engagement for non-lawyer citizens. Claiming that there isn’t a need to discuss citizens’ cares and concerns, but rather pointing to text in a constitution as providing a reason for a decision is a kind of moralism. Such moralism is described by Williams as: the insistence that a given person is wrong, disconnected from any possible understanding of how it comes about that she is wrong, tends to leave the commentator outside that person, preaching at her. 52
Williams’ view also makes sense with the realist revival of political theory. It highlights that political legitimacy, as procedures that ensure egalitarian political decision making, not consensus over theories of justice, are the most pressing question to be addressed in our political practices. That politics is about our cares and concerns is bluntly put by Sabl when claiming that we must account for the ethos of modern societies: “its astonishment at the extent of our incommunicable subjectivity, its conviction that each psyche contains a ‘little civilization.’ But we differ even more (and ever more) profoundly as a result of social and political development. The further we are from violent anarchy the less we resemble one another in our zeal for mere survival. My aspirations will not excite you; my vision for society will not motivate you; the justifications that convince me will not convince you. Realist liberalism means constantly trying to make sure that fewer people get left out or trod under whether by unconstrained private actors or by the institutions and practices that shape their choices and possibilities.” 53 In a similar vein, Larmore’s “reasonable disagreement”—which is not to be equated with Rawls’ version—for who even though persons reasoning from their standpoints and to the best of their abilities still do not reach convergence: “you have your moral views, I have mine, and each of us is convinced that they are right, standing ready to show the other the error of their ways.” Nonetheless, we ought to confront the problem of how to live together politically. 54
At this point, it is possible to object that in the democratic arena there will still be people who will not become motivated or change their S even if presented with all the facts over an issue they should care about. It is important to acknowledge this as a possibility. From the perspective of political realism, the preceding analysis points to a sobering truth: no deliberative theory—however, robust—can entirely eliminate coercion or dissent. In any political regime, some portion of the population will find itself compelled to obey institutions unacceptable to them. 55 There is still a lot of work to be done regarding how to structure sound deliberation, as well as how to deal with subjects for which it seems there isn’t any possibility to deliberate with others about. 56 However, understanding the reasons which motivate constitutional interpretation can provide an important input to reform the existing democratic procedures. In fact, it highlights that citizens and representatives should be given the space to openly put on the table their inner cares and concerns, instead of simply discarding those as self-interested reasons. 57 It also opens the possibility to further think about the role that reactive attitudes play in democratic deliberation, and how democratic processes can accommodate and make transparent these feelings, instead of claiming that they do not have an important role in political decision-making.
To paraphrase Williams, the value of reflecting on hard constitutional cases must lie in its ability “to sharpen perception, to make one more acutely and honestly aware of what one is saying, thinking and feeling.” Constitutional interpretation should be a shared enterprise of making sense of what it means to live with one another instead of prescribing how human beings must live from an external vantage point. Furthermore, a democratic deliberative process should facilitate a process for citizens to make sense of and reflect upon their interests and what underpins their views. It is this sort of reflection what can help them to change their S. In fact, a deliberation process where Judge A could openly talk about how she identifies with her daughters’ projects seems more democratic than one where these reasons have to be hidden behind legal jargon. 58
This section ends with a moderate claim: there isn’t such a difference between how constitutional judges get their motivations for their decision-making, and how ordinary citizens can also reach such motivations. First, internalism about reasons has a democratic and egalitarian flavor. 59 Citizens can recognize that they each have the potential to adopt certain reasons or change their S in order to become motivated to Φ-ing in a certain way. Second, if the goal of a deliberative process is to get reasons-claims to “stick to the agent; but the only glue for this purpose is social and psychological,” 60 perhaps it makes more sense to face the hard truth, that it is better to decide together—in a democratic and egalitarian way—how to live with one another.
Conclusion: IRT—A Sad Reality with Optimistic Potential
This paper demonstrated that constitutions do not provide reasons for action. It makes sense for citizens to feel discomfort with explanations which tell them that constitutional courts’ decisions come from the constitution’s text. In hard cases of constitutional interpretation these decisions touch upon cares and concerns of citizens. In this sense, a better explanation of why judges decide in a certain way must take into account the judges’ motivational set. As a result, the explanation of a given constitutional interpretation in judicial review is neither solely legalistic nor moralistic, it is ecumenical: (i) morality might play a role, but it isn’t a sufficient reason to substantively understand a constitutional clause in a certain way; (ii) legalistic reasons might move judges to use certain forms when rendering their arguments, but hardly can constrain their choices on the constitution clause’s content. At best, constitutions provide reasons for belief. Alongside these considerations, what an agent cares about and is concerned with plays a prominent role in her motivations for action. Even if not sufficient, they are a necessary component of their practical reasoning.
As a result, the explanatory work of this paper can be presented as “The Internalist Explanation”: Constitutional judges reach their decisions because of their internal motivations. The strong strand of this premise follows Williams in stating that there are only internal reasons for action. A mild strand claims that even if there are external reasons, judges would need to care about them and incorporate them into their S in order to become motivated to act and interpret the constitution in a particular way.
While the internalist explanation might sound despairing, it can instantiate revisionary thoughts in constitutional theory. This paper aimed to provide an explanation of constitutional deliberation from a moral psychology standpoint, which helps us to better build a thin theory of democratic and political legitimacy that rests on egalitarian grounds. It invites consideration of the role that cares and emotions should play in political deliberation. Furthermore, it highlights the need to rethink deliberation processes in order to find better ways to engage with fellow citizens in order to be able to influence their S. This final opportunity is the Democratic Deliberative Possibility: The S of individuals isn’t static, but it is open to change by a process of sound deliberation. As such, democratic deliberation, as a less constrained scenario, is more welcome to innovation and the accommodation of emotivist and self-interested reasons, and seems a better way to influence an S than judicial review.
Footnotes
Acknowledgments
I am grateful to Samuel Moyn, Brad Wendel, Matt Sleat, and Andrei Marmor for their detailed comments on earlier drafts of this paper. An early version was presented at the doctoral colloquium of the Law School at Universidad Javeriana (Bogotá) in 2023; I am grateful to the participants for their valuable comments, and in particular to professors Felipe Rey, Tania Luna, Luis Guillermo Guerrero, and Maria Clara Jaramillo. This paper was also presented at the junior scholars’ workshop at Cornell University where valuable feedback was received and incorporated. Finally, this paper was enriched by the valuable comments, conversations, questions, thoughts, and challenges patiently posed by Augie Faller, J.J. Moreso, Lorencita Villegas, Mayar Darawshe, Paolo Tamase, Thomas Raabe, Dennis Weiboldt, and an anonymous reviewer. I am particularly indebted to Shawn Thacker for his careful review of several versions of this paper. Not only he carefully helped me in editing my writing, but he provided detailed suggestions to improve the argument, and pointed out those places where there were contradictions or mistakes. Any remaining mistakes or infelicities are solely mine.
Funding
The author received financial support from the Graduate School at Cornell University during the research of this paper. No financial support was received for the autorship and/or publication.
Declaration of Conflicting Interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.