FUNDAMENTAL LAW, FUNDAMENTAL RIGHTS,
AND CONSTITUTIONAL TIME

DAVID MCNAMEE*

ABSTRACT

This Article lays the groundwork for a novel theory giving citizens pride of
place in constitutional interpretation—as voters and jurors, deliberators and
disobedients, and more. My account adopts different answers to two basic
questions that divide it from other prevailing theories: first, that citizens, rather
than judges, shoulder primary responsibility for interpreting principles of
fundamental law; and second, that fidelity to their Constitution requires, above all,
keeping faith with their fellow citizens across constitutional time. This approach
conceives of the Citizens’ Constitution as an enduring social contract. In setting
the stage for this account, I advance several related claims that carry independent
weight as theoretical contributions. First, the Citizens’ Constitution as
Fundamental Law is a distinct and vitally important domain of constitutional
principles, which are accessible and justifiable to citizens’ common reason, and
which ground their pervasive disagreements. Second, propositions of fundamental
law can be understood in another register—as propositions about constitutional
time, relating the constitutional present to its past and future. Third, these
propositions about constitutional time are moral arguments of a certain kind:
arguments about constitutional justice, about what we share as citizens and
participants in an enduring enterprise and what makes the Constitution worthy of
our allegiance. Finally, together these claims point the way to a recognitional
account of fundamental rights that deepens their connection to constitutional
justice, even as it generates a measure of commonality across pitched value
disagreements. 

* Law Clerk, Justice Sharon G. Lee, Tennessee Supreme Court; J.D., Yale Law School;

Ph.D., Princeton University, Politics. This Article is adapted from chapter 3 of my dissertation.

David Bragg McNamee, The Citizens’ Constitution as Fundamental Law (2020) (Ph.D.

dissertation, Princeton University) (on file with the Mudd Library), http://arks.princeton.

edu/ark:/88435/ dsp019g54xm61n. I am grateful to my committee members, Charles Beitz, Philip

Pettit, and my principal advisor Stephen Macedo, for their mentorship, encouragement, and insight.

Keith Whittington served as a fourth reader, and his penetrative questions brought significant

improvement. I am grateful for conversations throughout this project with Bruce Ackerman, Akhil

Amar, Jack Balkin, Anya Bernstein, Guyora Binder, Brookes Brown, Emilee Chapman, Ben

Ewing, Johann Frick, Heather Gerken, Des Jagmohan, Gary Jacobsohn, Ted Lechterman, Errol

Meidinger, Erin Miller, Jan-Werner Müller, Alan Patten, Lucia Raffaneli, Geoff Sigalet, Anna Stilz,

Matthew Steilen, Jim Wilson, and especially Corey Brettschneider. I thank Hannah Price, Thomas

Sokolowski, George Sorrells, and the editors of the Indiana Law Review for their thoughtful and

careful contributions. 



320 INDIANA LAW REVIEW [Vol. 55:319

TABLE OF CONTENTS

I. Introduction: The Citizens’ Constitution
II. When Did the Constitution Require Marriage Equality? A Puzzle and Some

Propositions
III. Fundamental Law and Fundamental Rights

A. Fundamental Law: History and Features
B. Fundamental Rights: Respect, Recognition, and Animating Abstraction
C. Two Objections and a Way Forward

IV. Fundamental Law and Constitutional Time
A. Unpacking the Puzzles and Going All-In
B. Distilling and Addressing the Core Objection
C. Answering Scalia’s Question

V. Conclusion: Can We Be Heroes? Fidelity, Responsibility, and Disagreement
About Fundamental Rights

I. INTRODUCTION: THE CITIZENS’ CONSTITUTION

We need new heroes. 
This slogan may ring true not just for American constitutionalism, but also

for many liberal-democratic regimes currently buffeted by destructive tidal
forces. It holds especially true, however—and it is within this narrow enterprise
that I advance the claim—for liberal constitutional theory, which has become
unmoored. American political liberals seem completely at a loss for how to think
and talk about their Constitution.1 

The primary cause is a tectonic shift on the Court that has caught liberals flat-
footed.2 From the New Deal through the Civil Rights Revolution, liberals
controlled the Court, and then they made peace with the gradually shifting
sequence of three swing Justices.3 But this détente came crashing down with the

1. I say this less as a frustrated liberal and more in my capacity as a constitutional theorist.

2. Others have made this same observation. For an astute and prescient example, see Cass

Sunstein, Earl Warren Is Dead, THE NEW REPUBLIC (May 12, 1996), https://newrepublic.com/

article/62143/earl-warren-dead [https://perma.cc/E8DU-4YK2] (reviewing RONALD DWORKIN,

FREEDOM’S LAW (1996)). But Sunstein’s theoretical commitments favor minimalism over heroism.

See CASS SUNST EIN, CONSTITUTIONAL PERSONAE (2013) (preferring the archetype of the

“minimalist” over that of the “hero”); infra notes 80, 209.

3. This liberal dominance was largely due to Justice Owen Roberts’s “switch in time” in West

Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), and President Roosevelt’s subsequent

transformative appointments. See 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS

(1998); BARRY FRIEDMAN, THE WILL OF THE PEOPLE 206-13 (2009); JEFF SHESHOL, SUPREME

POWER: FRANKLIN ROOSEVELT VS. THE SUPREME COURT (2011). Justice Kennedy reigned as the

median Justice during the Roberts Court until his retirement; Justice O’Connor during the Rehnquist

Court; and, to a lesser extent, Justice Powell during the Burger Court. See Andrew A. Martin et al.,

The Median Justice on the United States Supreme Court, 83 N.C. L. REV. 1275 (2005). But see

Benjamin E. Lauderdale & Tom S. Clark, The Supreme Court’s Many Median Justices, 106 AM. POL.



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321

saga of Scalia, Garland, McConnell, Trump, Gorsuch, Kennedy, Kavanaugh,
Ginsburg, and Barrett—leaving six committed constitutional conservatives in
place.4 And the liberal response has swung as well, in its own occasionally
incoherent way: from sober-minded commissions and structural reform proposals
pining for a “balanced” Court,5 to skeptical legal realist charges that originalism
is just conservative policy in a tri-corner hat,6 to earnest invocations of the
founders in their wisdom.7 This is all baffling. There are real interpretive
disagreements here, at bottom. But such a mishmash of opportunistic arguments
will not help to clarify them.

This flat-footedness is partly attributable to constitutional theories that have
lingered on the shelf long past their expiration date. Particularly, liberal
constitutional theory has suffered from ill-fitting answers to two basic questions.
I’ll call the first the responsibility question: Whose responsibility is the
Constitution, its paradigmatic interpreter? The second question is one of fidelity:

SCI. REV. 847 (2012) (complicating this notion).

4. Justice Antonin Scalia died in his sleep in the early morning of February 13, 2016. Adam

Liptak, Antonin Scalia, Justice on the Supreme Court, Dies at 79, N.Y. TIMES (Feb. 13, 2016),

https://www.nytimes.com/2016/02/14/us/antonin-scalia-death.html [https://perma.cc/AP7N-D5JQ].

Before President Obama nominated Judge Merrick Garland as his successor, Senate Majority Leader

Mitch McConnell announced that the Senate would not conduct hearings or a vote for the

confirmation, because the winner of the 2016 election should be able to fill Scalia’s seat. The Latest:

McConnell Tells Garland He Won’t Be Considered, AP NEWS (Mar. 16, 2016), https://apnews.

com/article/2d97d3c84cc445dc9e09a8406d901765 [https://perma.cc/C59E-TMCM]. After winning

the next election, President Trump successfully nominated Justice Neil Gorsuch to fill the vacancy,

and after Justice Kennedy also announced his retirement, Justice Kavanaugh was also nominated and

confirmed—after much heated controversy. See Mythili Sampathkumar, Brett Kavanaugh Confirmed

to Supreme Court Amid Widespread Outcry Over Sexual Assault Allegations, INDEPENDENT (Oct.

7, 2018), https://www.independent.co.uk/news/world/americas/us-politics/brett-kavanaugh-

confirmed-supreme-court-justice-senate-donald-trump-christine-blasey-ford-a8572201.html

[https://perma.cc/4TMF-UPJ8]. Then just months before the 2020 election, Justice Ruth Bader

Ginsburg succumbed to cancer, and President Trump nominated and confirmed Justice Amy Coney

Barrett, over the outrage of many liberals. See Nicholas Fandos, Senate Confirms Barrett, Delivering

for Trump and Reshaping the Court, N.Y. TIMES (Oct. 26, 2020), https://www.nytimes.com/2020/10/

26/us/politics/senate-confirms-barrett.html [https://perma.cc/J2SW-ZHV6]. 

5. See THE WHITE HOUSE, Presidential Commission on the Supreme Court of the United

States, https://www.whitehouse.gov/pcscotus/ [https://perma.cc/4EFQ-B5XK]; Daniel Epps &

Ganesh Sitaraman, How to Save the Supreme Court, 129 YALE L. J. 1 (2019).

6. See, e.g., ERIC J. SEGALL, ORIGINALISM AS FAITH (2018).

7. See, e.g., House Speaker Nancy Pelosi (@TeamPelosi), TWITTER (Nov. 1, 2019, 11:44

AM), https://twitter.com/TeamPelosi/status/1190308686759104512 [https://perma.cc/7WFV-

2WQT] (“When Benjamin Franklin came out of Independence Hall on September 17, 1787 after our

Constitution was adopted, people asked him: What do we have—a monarchy or a republic? He said:

‘A republic, if you can keep it.’”).



322 INDIANA LAW REVIEW [Vol. 55:319

How should those paradigmatic interpreters keep faith with the Constitution?8

Over the decades, most liberal theories have held the responsibility answer
constant—without hesitation, judges—while supplying sophisticated answers to
the fidelity question. John Hart Ely tells judges to preserve faith in the democratic
process, tempering their interpretations with distrust for its defects—and
enhancing their power to police the process.9 Bruce Ackerman’s theory of
constitutional moments proliferates the number of founding eras commanding our
fidelity to include Reconstruction and the New Deal, calling on judges to
synthesize the commitments from these eras.10 Ronald Dworkin instructs Judge
Hercules to keep faith with the best moral account of fundamental rights.11 But
theories that take the approach of vesting interpretive responsibility in judges
while finessing the fidelity question will only work insofar as the judges
cooperate and do what the theory tells them to do. These accounts are the best on
offer, but they have nothing to say about the current set of circumstances. 

The more recent turn to popular constitutionalism has seen the writing on the
wall and reached for the responsibility question, as with Mark Tushnet’s call to
“take the Constitution away from the courts,”12 Louis Michael Seidman’s
invocation of “constitutional disobedience,”13 and Michael Klarman’s exploration
of “anti-fidelity.”14 At their best these theories spin a variation on a theme from

8. One obvious theoretical candidate not discussed here is originalism, which places

responsibility in judges and requires fidelity to original constitutional meaning. It has many (probably

too many) varieties, and my view of fundamental law is compatible with most of them, so long as

they recognize the role of background principles and abstract textual markers that invite further

disagreement. Although self-avowed liberals have carried out many of orginalism’s most ambitious

recent theoretical advances—see Lawrence B. Solum, Originalist Methodology, 84 U. CHI. L. REV.

269 (2017) and JACK M. BALKIN, LIVING ORIGINALISM (2011)—most liberals disavow the view, and

I set it to one side. To be clear, the proper opponent of my view is not originalism, but a different

claim that some originalists such as Justice Scalia have held: that all there is to our Constitution is

ordinary law. I discuss this further in chapter 4 of my dissertation. David Bragg McNamee, The

Citizens’ Constitution as Fundamental Law (2020) (Ph.D. dissertation, Princeton University) (on file

with the Mudd Library), http://arks.princeton.edu/ark:/88435/dsp019g54xm61n.

9. See generally JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL

REVIEW (1980).

10. See 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991).

11. See RONALD DWORKIN, LAW’S EMPIRE (1986); RONALD DWORKIN, JUSTICE IN ROBES

(2006).

12. MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURT (1999). Tushnet’s

account in particular runs the risk of collapsing into bare politics. He argues that for progressives,

judicial review “cannot be defended except by seeing how it operates”—and that they “are losing

more . . . than they are getting” in terms of affirmative action and campaign finance reform when

gender equality and gay rights enjoy majoritarian support. Id. at 172. For more recent articulation,

see MARK TUSHNET, TAKING BACK THE CONSTITUTION: ACTIVIST JUDGES AND THE NEXT AGE OF

AMERICAN LAW 109-10 (2020).

13. LOUIS MICHAEL SEIDMAN, ON CONSTITUTIONAL DISOBEDIENCE (2012).

14. Michael J. Klarman, Antifidelity, 70 SO. CAL. L. REV. 381, 381 (1997) (“A more basic issue



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323

James Bradley Thayer, that the Court should only exercise judicial review in rare
cases of clear error.15 But even then the salience of the view depends on a
negative and totalizing judgment casting the Court as a usurper or bogeyman.
This view lacks nuance, overlooks the possibility that courts may play a
beneficial (if limited) role in popular constitutionalism, and leaves the most
important question wide open: what should our constitutional democracy look
like? At their worst these forms of popular constitutionalism collapse into
ordinary politics, becoming untethered from what is morally significant about a
constitutional democracy. They fail to see the Constitution as a generative
democratic resource, abandoning the fidelity question altogether. 

The most attractive of these accounts is Larry Kramer’s The People
Themselves. His locus classicus of popular constitutionalism closes with a stirring
demand to respect the judgment of ordinary citizens, pitted against “today’s
aristocrats,” the lawyer-priests who derive their own power from the temple of
judicial supremacy.16 This framing places the responsibility question front and
center: it is up to us to reclaim our constitutional authority. And then Kramer
moves to fidelity, discussing (in contrast with the judicial aristocrats) “those with
a greater faith in the capacity of their fellow citizens to govern responsibly.”1 7

Like Kramer, I believe that faith to be well-founded. But ultimately Kramer’s
claim is about power: there are more of us, who share that democratic sensibility,
than there are of them—and so we the people have the power to stake our claim
to the Constitution. Will we let that claim lie fallow and defer to the judicial
aristocracy, or will we take on responsibility for our Constitution? Kramer’s case
is powerful, but it misses the mark. His populist plea against judicial aristocracy
maintains faith in citizens,1 8 but we need more than that. What we need instead

has elicited relatively little interest: Does the Constitution deserve our fidelity at all? The answer to

that more fundamental question seems clear, if counterintuitive: Of course not. Why would one think,

presumptively, that Framers who lived two hundred years ago, inhabited a radically different world,

and possessed radically different ideas would have anything useful to say about how we should

govern ourselves today?”). Cf. MICHAEL J. KLARMAN, THE FRAMERS’ COUP (2017); Frank I.

Michelman, Michael Klarman’s Framers’ Coup (And the News from Antifidelity), 33 CONST.

COMMENT. 109 (2018) (reviewing Klarman and drawing an esoteric connection between the texts).

15. See James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional

Law, 7 HARV. L. REV. 129 (1893). A recent contribution in this tradition that also advances

interesting policy prescriptions is Ryan D. Doerfler & Samuel Moyn, Democratizing the Supreme

Court, 109 CALIF. L. REV. 1703 (2021) (proposing a supermajority requirement for judicial review

and jurisdiction stripping). The clearest and one of the longest-running opponents of judicial review

is Jeremy Waldron. See Jeremy Waldron, The Core of the Case Against Judicial Review, 115 YALE

L.J. 1346 (2006). But his ultimate preference for legislative supremacy, see JEREMY WALDRON, THE

DIGNITY OF LEGISLATION (2001), does not sit well with the separation of powers.

16. LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND

JUDICIAL REVIEW 246-48 (2005).

17. Id. at 247.

18. This base-level faith—more precisely, faith in citizens’ capacity to govern themselves—is



324 INDIANA LAW REVIEW [Vol. 55:319

is a theory for how to keep faith with them, in the present, past, and future. If our
aim is a theory that can justify rule according to constitutional principles as more
than the raw exercise of power, then we need an account of the Constitution as
a social contract that endures through time.

The way forward, I suggest, is to revisit both the responsibility and the
fidelity questions in the same sweep. The Constitution belongs to its citizens; it
is their responsibility to interpret and apply its principles in their roles as voters,
jurors, disobedients, and more.19 And in doing so their charge is to keep faith, not
just with the past, but with their fellow citizens as participants in that enduring
project across constitutional time, relating its present, past, and future.2 0 This is

necessary for a theory of constitutional democracy, but a fully adequate account needs more. Not

everyone shares this faith. See, e.g., JASON BRENNAN, AGAINST DEM OCRACY (2016). Against this

line of skepticism, I note that my account of fundamental law as principles accessible to citizens’

common reason yields an epistemic domain that is particularly open to ordinary citizens’

competence.

19. I mean to analogize citizens’ role responsibilities to the sort of ethical considerations that

weigh on conscientious officials who swear an oath to uphold the Constitution in their respective

capacities. Cf. SANFORD LEVINSON, CONSTITUTIONAL FAITH 103-05 (rev. ed. 2011) (discussing a

constitutional oath of citizenship). Note that naturalized citizens do swear such an oath. I mean to

deploy the concept of “citizenship” broadly, to include all members of the political community. This

more capacious definition will include, in principle, all adults with the capacity to participate in

political life. The Fourteenth Amendment guarantees national and state citizenship through birth and

nationalization. U.S. CONST. amend. XIV, § 1. Some interpretive responsibilities, such as voting and

jury service, are a function of state law, while other role responsibilities, such as deliberative

discussion or civil disobedience, emanate from that more capacious and moral idea of membership

in the political community. 

20. Constitutional time is a somewhat familiar concept that has been deployed variously in the

literature. Most of these discussions cluster around Skowronek’s influential discussion of “political

time.” STEPHEN SKOWRONEK, PRESIDENTIAL LEADERSHIP IN POLITICAL TIME (2008) (articulating

a cyclical theory of presidential regimes and “the politics presidents make,” where constitutional and

political time ebb and flow along with and according to these cyclical regimes); see, e.g., BRUCE

ACKERMAN, WE THE PEOPLE (in its various volumes spanning 1993, 1998, 2014, and TK) (applying

some of Skowronek’s insights to develop a theory of “constitutional moments” when

transformational movements engage in higher law-making and entrench those alterations through

winning decisive elections); KEITH WHITTINGTON, POLITICAL FOUNDATIONS OF JUDICIAL

SUPREMACY (2007) (employing Skowronek’s notion of “reconstructive” presidencies to explain the

rise of judicial supremacy as regime-reinforcing). Jack Balkin’s recent work has explored the concept

of constitutional time, but he deploys it in an externalized and almost mechanistic account of periodic

cycles: those of regimes, polarization, and the important idea of “constitutional rot.” See JACK M.

BALKIN, THE CYCLES OF CONSTITUTIONAL TIME (2019). My account is more internal and

interpretive—even, as I discuss later, a constructive notion. See also Jack M. Balkin & Sanford

Levinson, The Processes of Constitutional Change: From Partisan Entrenchment to the National

Surveillance State, 75 FORDHAM L. REV. 101 (2006) (articulating their own account of “partisan

entrenchment” to explain constitutional change through the mechanism of presidential regimes and

the appointment process); JACK M. BALKIN & SANFORD LEVINSON, DEMOCRACY AND DYSFUNCTION



2022] FUNDAMENTAL LAW, FUNDAMENTAL
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the idea of fundamental law. But it presents a puzzle about the nature of
constitutional authority and the temporal aspect of our constitutional project. To
further develop these ideas, we now turn to a concrete instance of that puzzle.

II. WHEN DID THE CONSTITUTION REQUIRE MARRIAGE EQUALITY? A PUZZLE
AND SOME PROPOSITIONS

On March 26, 2013, two lawyers engaged in a pointed exchange during oral
argument at the Supreme Court.21 Both men had ascended to prominence in the
early 1980s with the rise of a new legal conservatism, and they retained their
good standing in the conservative legal movement.22 Antonin Scalia, sitting at the
bench with the other Justices, was an architect of the “New Originalism,”23 a
celebrated legal pugilist and public face of conservative constitutional thought.
At the bar was Ted Olson, who had led President Reagan’s Office of Legal
Counsel. Olson had argued dozens of Supreme Court cases advancing
conservative causes in private practice and as Solicitor General for George W.
Bush—from representing Bush during the 2000 Florida recount to assaulting
campaign finance regulations in Citizens United v. FEC.24

What might have been most surprising about the day’s argument was that

(2019) (featuring an epistolary exchange laying out the authors’ views, including Balkin’s temporal

notion of “constitutional rot”). Balkin has also explored linkages between the concept of time in

constitutional argument, the uses of history, and constitutional memory in Jack M. Balkin, Lawyers

and Historians Argue About the Constitution, 35 CONST. COMMENTARY 345 (2020) and Jack M.

Balkin, Constitutional Memories (draft Jun. 1, 2022), https://papers.ssrn.com/sol3/papers.

cfm?abstract_id=4106635. See also Gerald Postema, Time in Law’s Domain, 31 RATIO JURIS 160

(2018) (discussing time as an essential and under-theorized feature of law generally); ELIZABETH

COHEN, THE POLITICAL VALUE OF TIME: CITIZENSHIP, DURATION, AND DEMOCRATIC JUSTICE (2018).

21. Hollingsworth v. Perry, 570 U.S. 693 (2013).

22. Antonin Scalia and Ted Olson both served as Assistant Attorney General for different

administrations, heading the Office of Legal Counsel. Scalia served during the Ford Administration;

Olson served in the same position from 1981 to 1984 under Reagan. During that time Scalia was

appointed to the D.C. Circuit Court, then later elevated to the Supreme Court in 1986. Both men

participated in the opening convening of the Federalist Society at Yale Law School in 1982—Scalia

as a faculty advisor for the group at the University of Chicago Law School, Olson as the head of the

Reagan OLC. See Michael Kruse, The Weekend at Yale That Changed American Politics, POLITICO

MAG. (Sept. 2018), https://www.politico.com/magazine/story/2018/08/27/federalist-society-yale-

history-conservative-law-court-219608 [https://perma.cc/66DE-QRPV]. See STEVEN TELES, THE

RISE OF THE CONSERVATIVE LEGAL MOVEMENT (2008), for a useful discussion of the conservative

legal movement.

23. For a classic statement, see ANTONIN SCALIA, A MATTER OF INTERPRETATION (Amy

Gutmann, ed. 1997). Scalia’s key contribution was the emphasis on the original public meaning of

the constitutional text as ratified, as opposed to the original intentions of the framers who wrote it.

24. Theodore B. Olson, Biography, GIBSON DUNN, https://www.gibsondunn.com/lawyer/

olson-theodore-b/ [https://perma.cc/2WBK-476B]. 



326 INDIANA LAW REVIEW [Vol. 55:319

these brothers-in-arms found themselves on opposing sides of a significant
constitutional disagreement. Olson had come to challenge the constitutionality of
California’s Proposition 8, which had narrowly passed in 2008 to bar same-sex
marriage within the state.25 But, there is something even more striking about
Scalia’s question. Namely, there is no satisfactory answer Olson can give (save
for conceding the point, which is no answer at all) without resorting to a deeper
question of constitutional theory: How does the content of our fundamental law
change over time? 

Scalia begins with the premise that the Court’s role is to “decide[] what the
law is. That's what we decide, right? We don't prescribe law for the future.
We—we decide what the law is. I'm curious . . . when did it become
unconstitutional to exclude homosexual couples from marriage? 1791? 1868,
when the Fourteenth Amendment was adopted?”26 The implication, it seems, is
that Olson cannot answer the question because he is making it all up as he goes
along. Reasonable people disagree about gay rights and marriage equality, and
the hard, fixed law of the Constitution, rooted in historical facts, does not resolve
this disagreement. To pretend otherwise and ask the Court to strike down this
democratic initiative is to ask the Justices to exceed the bounds of their judicial
duty.

Olson offers the lawyerly rejoinder that it was no more obvious when the
Constitution came to prohibit state bans on interracial marriage2 7—which
persisted until 1967, more than a decade after Brown v. Board of Education.28 But
Scalia will have none of it. The case of interracial marriage is “an easy . . . one,”
unlike the marriage ban before the Court that day. A race-based ban was, as a
matter of plain text and original public meaning, unconstitutional “[a]t the time
that the Equal Protection Clause was adopted. . . . But don't give me a question
to my question. When do you think [banning same-sex marriage] became
unconstitutional? Has it always been unconstitutional?”29 Olson gamely tries
again: such a ban became unconstitutional “when we as a culture determined that
sexual orientation is a characteristic of individuals that they cannot control,” the
output of “an evolutionary cycle.”30 And one can almost see the steam billowing
out of Scalia’s ears: “Well, how am I supposed to know how to decide a case,
then, . . . if you can’t give me a date when the Constitution changes?”31 The easy
(but mistaken) answer to Scalia’s challenge is, of course, that such a ban was
never unconstitutional. How can evolving social attitudes retroactively alter the
legal-historical fact of what the Fourteenth Amendment said at the time of its

25. Perhaps as a symbol of bipartisan solidarity, Olson’s co-counsel was David Boies, who had

sat on the other side of the courtroom representing Vice President Gore in 2000. 

26. Oral Argument, Perry v. Hollingsworth, 570 U.S. 693 (2013) (No. 12-144) https://www.

oyez.org/cases/2012/12-144 [https://perma.cc/VB2M-KNBY] (emphasis added).

27. Id.; Loving v. Virginia, 388 U.S. 1 (1967). 

28. 347 U.S. 483 (1954).

29. Oral Argument, supra note 26. 

30. Id. 

31. Id.



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enactment?32

This Article seeks to answer Scalia’s question by developing an account of
the relationship between the Citizens’ Constitution as fundamental law and the
idea of constitutional time. I advance four interwoven propositions. 

First is an idea I have already introduced, the Citizens’ Constitution as
fundamental law.33 Basic principles of fundamental law are accessible to citizens’
common reason. They are artifacts of our social world, but they are also steeped
in political morality. They constitute the fundamental value commitments and
aims of the constitutional order, underlying the Constitution’s more specific
requirements, and constitutional interpreters may properly rely on these principles
in applying those constitutional requirements to certain controversies. And since
citizens disagree with one another about the contours of our social world and the
content of political morality, citizens will also disagree about these principles and
how they apply. But because these principles are basic in this way, and because
they appeal to our common reason as citizens, these principles serve an important
purpose. They ground and channel citizens’ deeply contested disagreements,
ensuring that these pervasive disagreements are generative—that they sustain and
repair the constitutional order as an enduring project of self-government, that the
parties to these disagreements aim to view this common enterprise, as Ronald

32. Jack Balkin’s imagined response—in what is truly grand-slam-level snark—to Scalia’s

question (“OLSON: Well, according to your dissent in Lawrence v. Texas, the Court decided that

issue in 2003.”) is a bit too on the nose—the answer is likely sometime after June 2003. See Jack

Balkin, Supreme Court Arguments We’d Like To See, BALKINIZATION (Mar. 26, 2013),

h ttps://balkin .blogspot.com /2 0 1 3 /0 3 /su prem e-cou rt-argu m en ts-wed-like-to-see.h tm l

[https://perma.cc/DG8K-6VC6]. An even deeper irony is that, in the intervening years between

Scalia’s 2013 question and Obergefell v. Hodges, 576 U.S. 644 (2015), the Circuit Court cases that

would lead to that full recognition of marriage equality answered Scalia’s question with his dissent

in the DOMA case, United States v. Windsor, 570 U.S. 744 (2013), which came just several months

after Perry.

33. Elsewhere I have examined the example of “Black Lives Matter” as a claim of fundamental

law that invokes the Citizens’ Constitution. See David McNamee, “Black Lives Matter” as a Claim

of Fundamental Law, 14 U. MASS. L. REV. 2 (2019). In contrast to the rival principle of

colorblindness (which insists that we recognize that “all lives matter,” and that any other contention

perpetuates invidious discrimination), the claim that “Black Lives Matter” acknowledges the

difference in the lived experience of Black citizens and the historical legacy of their continuing

subordination by the institutions of White Supremacy. It demands that any serious effort to interpret

what equality requires or what police conduct is reasonable must include a clear-eyed recognition of

that difference and that legacy. But, following the example of Frederick Douglass’s emancipatory

protestantism, I show how this claim of fundamental law empowers citizens to keep faith with their

Constitution, even when they experience alienation from these institutions. And that is because the

Citizens’ Constitution, properly understood, forbids practices such as White Supremacy and

structural discrimination. This idea of emancipatory protestantism enables a kind of radical self-

inclusion and promotes what I call the “constitutional bases of respect,” even in the face of on-the-

ground injustice, which I discuss further here.



328 INDIANA LAW REVIEW [Vol. 55:319

Dworkin puts it, in its “best light.”34 At the very least, the invocation of principles
of fundamental law serves to ensure that the participants to these interpretive
disagreements are arguing about the same thing: a shared scheme of constitutional
principles. Beyond that minimal aspiration, the repeated application of these
principles to new circumstances sustains a grander hope—that these principles
might justify our political order as coherent and at its best, one that is worthy of
our allegiance.

Second, claims of fundamental law, at least in part, can be understood as
arguments about constitutional time, defined in a certain way. This idea, as I will
explain, is not merely a matter of some empirically discernable historical record,
like the sort of constitutional time stamp that Scalia was seeking. Events in
constitutional time must, of course, be answerable to those sorts of historical
facts—but the sweep of constitutional time is more than the sum of their parts.
Neither should we understand constitutional time as the aggregate of individual
time slices, from “time immemorial” to 1789 and into (one hopes) the distant
future, which we can imagine viewing from some external Archimedean
perspective or verifying by stuffing a bunch of constitutional scholars in a time
machine and visiting each one in sequence.35 Rather, the concept of constitutional
time as I use it is a relational, presentist, and argumentative phenomenon. Claims
about constitutional time consist of interpretive arguments, offered by participants
in a given moment, relating the constitutional present to its past and future. 

Third, so defined, arguments about constitutional time are essentially moral
arguments, of a kind.36 These aim to justify our constitutional order to its citizens.

34. DWORKIN, LAW’S EMPIRE, supra note 11, at 398.

35. See Arthur Ripstein, Introduction: Anti-Archimedeanism, in RONALD DWORKIN 5-18

(Arthur Ripstein ed., 2007), for discussion of this notion as an organizing theme of Ronald Dworkin’s

body of thought. Archimedes is said to have claimed that, with a lever and proper place to stand, he

could move the world. Dworkin’s web of related philosophical projects suggests that, with respect

to the domain of value, there can be no such Archimedean standpoint outside of that domain from

which we can assess various arguments. For such assessments to be coherent, they must be

understood as interpretive claims made from within the domain of value (including law, ethics,

political and personal morality), embedded within a shared interpretive practice. See RONALD

DWORKIN, JUSTICE FOR HEDGEHOGS (2011); Ronald Dworkin, Objectivity and Truth: You’d Better

Believe It, 25 PHIL. & PUB. AFF. 87 (1996). With respect to an Archimedean perspective on

constitutional time, I am imagining a sum of time slices that resembles modern physicists’ notion of

a four-dimensional “block universe” that emerges from Einstein’s theories of relativity. For an

interesting discussion of the various philosophical controversies about the nature of time, see Ned

Markosian, Time, STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Jan. 24, 2014), https://plato.

stanford.edu/entries/time/ [https://perma.cc/L6FB-PMA3]. Whatever happens to be the best way to

understand the nature of time itself, my claim is that constitutional time, as an argumentative

phenomenon that manifests in the shared practice of constitutional interpretation, is best understood

as a presentist notion that is, at least in part, constituted by moral arguments of a kind. As such, my

account rejects this sort of Archimedean standpoint from which we might evaluate claims of

constitutional time.

36. It is, of course, a common feature of various strands of thought opposed to legal positivism



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They sustain and are anchored in the constitutional bases of respect. They ground
pervasive disagreements about constitutional justice. They give rise to the domain
of what I have called “citizens’ common reason”—which we can understand as
a constellation of competing and complementary narratives that partly cohere and
partly diverge across the span of constitutional time. These concepts warrant
further explanation, and the notion of constitutional time offers useful
explanatory resources at our disposal. 

This account provides an answer to Scalia’s question, one that tackles the
problem of disagreement head-on. Discrimination against marriage equality did
not become unconstitutional when some judge in black robes intoned some
Delphic proclamation. It happened when (or, better, because) constitutional
citizens, deliberating together, came to understand that their fundamental law
required that equal recognition. Such an “event,” if we want to call it that, can
occur—indeed, as we will see, must occur—even as interpretive disagreement
persists. The key is to observe this disagreement over the arc of constitutional
time—from our present commitments into the shared traditions of the past, with
an eye to the future and an imagined retrospective of the “right side of history”
(whatever that turns out to be). That, as we will see, is precisely what Justice
Kennedy is doing over the two-decade span of gay rights cases that lead to the
recognition of marriage equality. 

Fourth and finally, my account also points to a richer conception of
fundamental rights. This account properly identifies their recognitional stakes in
disagreements about rights, placing that concern front and center. It locates
important conceptual space between hardbound particularized traditionalism and
unmoored theoretical inquiry—where custom and history operate as interpretive
objects and sources of animating abstraction.

that law and morality are essentially connected in some way. A recent turn in several prominent

antipositivist accounts suggests that law, in general, is a kind of subset of morality. See, e.g., RONALD

DWORKIN, JUSTICE FOR HEDGEHOGS supra note 35, at 5, 407 (arguing that law is a “branch” of

morality—namely, the set of rights and duties that are judicially enforceable); Mark Greenberg, The

Moral Impact Theory of Law, 123 YALE L.J. 1288, 1290 (2014) (defending the view that “legal

obligations are a certain subset of moral obligations,” insofar as “[l]egal institutions—legislatures,

courts, administrative agencies—take actions that change our moral obligations . . . by changing the

morally relevant facts and circumstances, for example by changing people’s expectations, providing

new options, or bestowing the blessing of the people’s representatives on particular schemes . . . [and,

as a result,] the law is the moral impact of the relevant actions of legal institutions”). The claim I

defend here is much narrower than these: it is simply that arguments about constitutional time (and

it follows, at least some claims of fundamental law) are essentially moral arguments because they

sound in a certain moral register: one that resonates with what I have called the constitutional bases

of respect and which aims to constructively grounds disagreements of political morality. There is

similarly nothing in this claim that requires the legal positivist to hop off the train—positive law may

certainly give rise to arguments that sound in a particular moral register. 



330 INDIANA LAW REVIEW [Vol. 55:319

III. FUNDAMENTAL LAW AND FUNDAMENTAL RIGHTS

In this section I develop the idea of fundamental law by sketching its history
and characteristics. One idea that emerges from that survey—the notion of
constitutional justice—then sets the stage for an important feature of aspect of
fundamental rights claims: their recognitional stakes and concomitant effect on
citizens’ constitutional bases of respect. Two important objections to the account
then come into view. 

A. Fundamental Law: History and Features

The founding generation’s notion of fundamental law traces to the
seventeenth-century legal theory of the English Whigs.37 Historian J.G.A. Pocock
calls fundamental law “that most important and elusive of seventeenth-century
concepts.”38 Shannon Stimson observes that the concept bore substantial
disagreement during its height, proving to be murky even then. Even though
political players of all stripes regularly invoked the notion of fundamental
law—from Lord Coke in his jurisdictional battles with James I to the radical
Leveller critics of the common law— “there was never any single ‘idea’ of
fundamental law, or even general agreement as to which laws or customs were
the fundamental ones and which were not.”39

But perhaps all that disagreement is precisely the point. Indeed, viewing
fundamental law as an argumentative resource is vital to understanding it as a
concept. Legal historian Larry Kramer helpfully describes this notion of
fundamental law as a “framework for argument, in which historical accuracy was
less important than analogical persuasiveness in maintaining over time an
established balance between liberty and power despite new or changed
circumstances.”40 A wide range of deliberative resources informed these

37. See JOHN PHILLIP REID, CONSTITUTIONAL HISTORY OF THE AMERICAN REVOLUTION 76

(1995); see also JOHN PHILLIP REID, IN DEFIANCE OF THE LAW: THE STANDING-ARMY

CONTROVERSY, THE TWO CONSTITUTIONS, AND THE COMING OF THE AMERICAN REVOLUTION 35

(1981); SHANNON STIMSON, THE AMERICAN REVOLUTION IN LAW (1991). For discussion of similar

trends in constitutional development by the English Whigs, see J.G.A. POCOCK, THE ANCIENT

CONSTITUTION AND THE FEUDAL LAW, 30-56 (1987) and JOHN W. GOUGH, FUNDAMENTAL LAW IN

ENGLISH CONSTITUTIONAL HISTORY (1955). 

38. POCOCK, supra note 37, at 48.

39. STIMSON, supra note 37, at 15. Both Lord Coke and the radical Leveller reformers

subscribed to the view that fundamental law was “enshrined in the common law and in those common

law institutions such as trial by jury that were believed to have roots in a remote Saxon and legally

pure English past.” Id. Leveller critics of the contemporary common law subscribed to Coke’s

characterization that fundamental law was “the absolute perfection of reason,” but, as Stimson

observes, “[t]he question at issue was, whose reason? Leveller law reformers explicitly challenged

Coke’s claim that only the professionally trained and artificial reason of judges could unlock the

meaning of law.” Id. at 18 (discussing Leveller John Lilburne’s treason trial).

40. KRAMER, supra note 16, at 13 (emphasis added).



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arguments, but the core of the “fundamental law” was a 

constitution [that] consisted of English liberty . . . derived from “custom
immemorial,” a bounded and very real canon whose roots were said to
be lost in the distant Saxon past. Subsequent enactments, later developed
practices, learned treatises, and arguments drawn from natural law were
all useful in helping to illuminate, translate, and make sense of these
ancient principles. Constitutional polemicists employed these diverse
sources to articulate and apply the enduring precepts of fundamental
law.41

Of course, such a “framework for argument” would generate considerable
disagreement about what exactly the principles of fundamental law require. But
Kramer is careful to caution that “there was consensus about a great deal of
fundamental law,”42 stemming from the conflicts of the seventeenth century and
their resolution.43 “Constitutional disputes might arise respecting the precise
meaning or application of these principles”—such as the trial by jury or the
liberty of the press—“in particular contexts, but there was general agreement as
to their existence and even as to their application in a fairly broad range of
circumstances.”44

Historian Suzanna Sherry thus describes the fundamental law of the ancient
constitution as “custom mediated by reason.”45 She cites Lord Bollingbroke’s
memorable depiction of fundamental law as “that Assemblage of Laws,
Institutions and Customs, derived from certain fix’d Principles of Reason,
directed to certain fix’d Objects of publick Good, that compose the general
System, according to which the Community hath agreed to be govern’d.”46 Sherry
explains how the fundamental law of a constitution interacts with (and even can
invalidate!) ordinary positive law—but is importantly distinct from it:

Like natural law and laws or traditions that had existed since time
immemorial, [the constitution] could be used to invalidate positive law,
but again like natural law and those long-established laws and traditions,
a constitution was not itself seen as positive, enacted law but rather as a
declaration of first principles.47

Fundamental law, in other words, interacts with ordinary law—but it is
importantly distinct from it, a set of basic principles that underlie (and can

41. Id.

42. Id. at 14.

43. These include the English Civil War, the Stuart restoration, the Glorious Revolution, and

so on.

44. KRAMER, supra note 16, at 14.

45. Suzanna Sherry, The Founders’ Unwritten Constitution, 54 U. CHI. L. REV. 1127, 1130

(1987) (emphasis added).

46. Id. 

47. Id. at 1146.



332 INDIANA LAW REVIEW [Vol. 55:319

invalidate) those laws. Notice the basic and systematic character of
Bollingbroke’s definition. What matters is that a complex pattern of law and
custom spins out, over time, guided by “principles of reason”—and it is to this
emergent weave that the political community consent, in a limited sense,48 to be
governed. On this analogy, the fundamental law of the Constitution is the pattern
itself, not the individual threads of laws and customs that compose it. The
constitution may invalidate a law, but it is not the result of some positive
enactment. Rather (as with plucking an errant thread that departs from a pattern)
it is the emergent system that does the work.49 

The innovation of the American Constitution was, of course, to inscribe and
enact fundamental law. As Sylvia Snowiss argues, written enactment underscores
the democratic values of fundamental law, rendering the Citizens’ Constitution
even more accessible—not just to common law judges, but to anyone who can

48. In his law lectures, founding figure James Wilson provides a way for understanding how

this figurative conception of consent operates, with how discussion of the evolution of common law

principles. “This law is founded on long and general custom,” which “necessarily carries with it

intrinsick evidence of consent.” This body of principles, Wilson says, “acquires strength in its

progress,” and notably, it does so on the basis of argument: 

A customary law, with a modesty appropriate to conscious merit, asks for admittance only

upon trial, and claims not to be considered as a part of the political family, till she can

establish a character, founded on long and intimate acquaintance. The same means, by

which the character of one law is known and approved, are employed to try and

discriminate the character of every other. In favor of every one that is recommended, it

can be said, not only, that it has lived unexceptionably by itself, but also that it has lived

in peace and harmony with all the others. In this manner, a system of approved and

concording laws is gradually, though slowly, collected and formed.

To the citizen, these enduring legal principles entreat as follows: “I never intruded upon you: I was

invited upon trial: this trial has been had: you have long known me: you have long approved me: shall

I now obtain an establishment in your family?” See 1 THE COLLECTED WORKS OF JAMES WILSON

567-69 (Kermit Hall & Mark Hall eds., 2007). This is, of course, nothing like the sort of consent we

would expect of an actual agreement between persons—but that fact alone does not negate its

normative value. We can see a similar notion at play in the modern inheritors of the social contract

tradition in which fundamental law thinking was steeped. See JOHN RAWLS, POLITICAL LIBERALISM

222 (1993). 

49. And indeed, fundamental law is what constitutes that system of institutions. Gough quotes

a memorable passage from an anonymous Leveller pamphleteer in 1643: “Fundamental Laws . . . are

not (or at least need not be) any written agreement like meare-stones [boundary markers] between

King and people, the King himself being a part (not party) in those laws, and the Commonwealth not

being like a corporation created by charter, but creating itself.” As a matter of first principles,

fundamental laws cannot be “things of capitulation between king and people as if they were

foreigners and strangers one to another” but rather “things of constitution, creating such a relation,

and giving such an existence and being . . . to king and subject, as head and members.” As a result,

the fundamental law that gives rise to a constitutional system “is a law held forth with more evidence

and written in the very heart of the Republique, far firmlyer than can be by pen and paper.” GOUGH,

supra note 37, at 100-02.



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read the text and reason about its principles together.50 But if unwritten principles
of fundamental law preceded the ratification of a positive Constitution, then the
question is this: did these principles of fundamental law survive ratification, or
were they displaced by it? Sherry ultimately concludes that a substantial body of
fundamental law persisted after the founding, that the textual enactments “coexist
with and complement other sources of fundamental law.”51 For example, during
the convention debates, James Wilson argued against Article I, Section 9’s
prohibition against ex post facto laws, because such retroactive lawmaking
violates the first principles of legislation.52 One way to think about this claim is
that it attaches to Article I’s vesting of “legislative power,” properly understood.
But a parallel and complementary understanding is that principles of fundamental
law—such as “ex post facto laws are no law at all”—predated and would survive
written constitutional enactment. 

Principles of fundamental law do not come from without; despite the
importance of reason in their discernment and elaboration, they are not simply
emanations of natural law. Instead, any claim of fundamental law must take root
in positive sources of some kind or other—what we might think of as the set of
constitutional materials, broadly understood. These include, as we have already
observed, certain abstract and evocative provisions of the constitutional text, such
as “cruel and unusual” or “due process.” They also include claims about “ancient”
customs from “time immemorial”—once again, pitched at a high level of
abstraction, so that their application can endure. A prohibition against ex post
facto legislation can trace its roots to both sources. But, crucially, the force of
principles of fundamental law is not strictly reducible to these positive authorities.
Such force is not authoritative, but rather deliberative, mediated by the ongoing
reasoned application of these principles—the ideal that Habermas would later call
“the unforced force of the better argument.”53 The point cuts deeper, in somewhat
surprising ways. Because it is this deliberative application of principles of
fundamental law—their ability to justify our constitutional order and its exercise
as fair and reasonable—that generate their “oomph,” we can observe some odd
causal directionalities. For principles of fundamental law that trace a line to
ancient custom, it is the rightness of a principle or practice, its eminent
reasonableness, that renders it timeless; not the other way around.54 What makes

50. SYLVIA SNOWISS, JUDICIAL REVIEW AND THE LAW OF THE CONSTITUTION 26 (1990). See

also Gordon Wood, The Origins of Judicial Review Revisited, or How the Marshall Court Made

More Out of Less, 56 WASH. & LEE L. REV. 787 (1999). 

51. Sherry, supra note 45, at 1160. See generally id. at 1156-70.

52. WILSON, supra note 48, at 153-54. At the Pennsylvania ratification convention, Wilson was

also among the first of the Federalists to take this same line of argument against a Bill of Rights: not

only was the enumeration of such rights unnecessary, but it was also pernicious, in that it might

undermine other implicit principles in the text.

53. JURGEN HABERMAS, BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A DISCOURSE

THEORY OF LAW AND DEMOCRACY 305-06 (Thomas McCarty ed., Rehg trans., 1996). 

54. Cf. Thomas Grey, Origins of Unwritten Law, 30 STAN. L. REV. 843, 852-53: (“The



334 INDIANA LAW REVIEW [Vol. 55:319

certain abstract textual provisions vital principles of fundamental law is that they
evoke the sort of moral concepts that should inform our deliberations and channel
our disagreements. This is what I mean when I say that principles of fundamental
law appeal to citizens’ common reason.

The most obvious and basic contrast is between fundamental law and its
categorical opposite and complement, ordinary law. Fundamental law is, in a
sense, both deeper than and prior to ordinary law, which seeks to provide action-
guidance for the parties it binds. Ordinary law does so through specific and
predictable settlement by authoritative institutions such as courts. By contrast, the
domain of fundamental law contains far more controversy—a function of
citizens’ capacity to apprehend (and disagree about) its meaning. 

In 1675, Quaker leader William Penn described the “fundamental laws”—in
addition to and distinct from the natural laws of universal reason—as:

those rights and privileges which I call English, and which are the proper
birthright of Englishmen, and may be reduced to these three:

First. An ownership, and undisturbed possession: that what they have
is rightly theirs, and nobody else’s.

2ndly. A voting of every law that is made, whereby that ownership
or propriety may be maintained. 

3rdly. An influence upon, and a real share in, that judicatory power
that must apply every such law; which is the ancient, necessary, and
laudable use of juries.55

These laws are “either fundamental and so immutable,” or are instead “mere
superficial and temporary, and consequently alterable . . . as are suited to present
occurrences and emergencies of states.” As examples of such ordinary laws, Penn
offers “those statutes that relate to victuals, clothes, times and places of trade,
etc.”56 Distinguishing such “mere” ordinary laws is not to denigrate or trivialize
them. (The times and places of trade are quite important!) In the debate over
constitutional ratification and the need for a Bill of Rights, Antifederalist author
Federal Farmer draws a similar tripartite distinction. First are natural rights,
“which even the people cannot deprive individuals.”57 Then there are ordinary
laws, which can be issued and altered by the legislature. By contrast: 

Constitutional or fundamental [rights] . . . cannot be altered or abolished
by the ordinary laws; but the people, by express acts, may alter or abolish
them—These, such as the trial by jury, the benefits of the writ of habeas

authority of the fundamental laws rested partly on this imagined immemorial antiquity, but also partly

on their asserted reasonableness. As had their medieval predecessors, 17th-century lawyers blended

custom and reason into a single system of fundamental law. The two sources were not seen as in

conflict—the old was the reasonable and the reasonable was the old.”).

55. GOUGH, supra note 37, at 154. 
56. Id. at 153.

57. Letter from Federal Farmer No. 6 (Dec. 25, 1787), in HERBERT J. STORING, THE COMPLETE

ANTI-FEDERALIST 261 (1981).



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corpus, &c. individuals claim under the solemn compacts of the people,
as constitutions, or at least under laws so strengthened by long usage as
not to be repealable by the ordinary legislature.58

Importantly, what renders these principles and provisions of fundamental law
unalterable is not that they are encased behind unbreakable glass, briefly to be
squinted at by citizens shuffling through a line under the superintending gaze of
their curators, judges in black robes. Instead, principles of fundamental law are
unalterable because of their ready accessibility and justificatory appeal to
citizens’ common reason. It is their “long usage,” rather than their disuse, that
makes these principles endure—and what determines that length is not mere
historical fact, but (as we will see) moral arguments of a kind. 

This deliberative conception of unalterability in principles of fundamental
law suggests that they are unalterable in virtue of their commonality,
accessibility, and justifiability—all of which are properties that are dynamic
rather than static. We can distill this deliberative and dynamic conception into
three features that may serve as a complete statement of my account of
fundamental law and its distinctiveness. 

Feature (F1): Principles of fundamental law operate as law
despite persistent disagreement over application and
a lack of settlement. They aim at objective
coherence through ongoing interpretive argument.

This feature is perhaps the most salient distinction between fundamental law and
ordinary law. Fundamental law is law in the sense that its principles continue to
operate as law in spite of disagreement over their particular application. We
cannot say the same for rules of ordinary law.

Consider the difference between the Fourth Amendment’s general guarantee
against “unreasonable . . . seizures” and a binding judgment from a court that a
police officer is liable for using excessive force against a suspect. The latter is an
instance of ordinary law, a determination that gives rise to a stable array of rights
and remedies—but only if the relevant officials and parties agree on its
application (that the court has proper jurisdiction, etc.). By contrast, we can
imagine robust disagreement over whether the particular use of force was
“unreasonable,” both within the jury’s deliberations and in response to the
verdict. There is no question, however, that the general principle of
“reasonableness” continues to apply and operate even then, as law, constraining
and guiding those deliberations. The persisting disagreement is about the best
interpretation and proper application of that principle, which is shared at a high
level of abstraction.59

58. Id.

59. Compare with Dworkin’s discussion of the concept/conception distinction in, e.g., RONALD

DWORKIN, TAKING RIGHTS SERIOUSLY 134-36 (1977). 



336 INDIANA LAW REVIEW [Vol. 55:319

While ordinary law consists in binding directives and a settled scheme of
rights and duties, the currency of fundamental law is nothing more than
interpretive argumentation. In their operation, principles of fundamental law
reduce to the reasoned arguments that interpretive participants bring to bear on
the case at hand. Their force depends entirely on who has the better of the
argument—and, more importantly, why. Individual citizens, situated within the
context of a particular role, are responsible for making this determination and
justifying with interpretive arguments that their fellow interpreters can accept.
Fundamental law holds out the promise that these conversations could (and do!)
continue indefinitely in principle, even as we resolve cases and controversies at
hand. It is through the ongoing dialogue that fundamental law promotes the
values of constitutional democracy—grounding our disagreements, illuminating
responsibility for constitutional injustices, securing the constitutional bases of
respect.

Interpretive arguments that deploy principles of fundamental law aim at
coherence in the following way: they aim to offer the best and most
thoroughgoing account of common constitutional materials—textual
commitments, their interlocking structures, their animating history, as well as
landmark enactments and decisions. I say that this aspirational coherence is
objective in three respects. First, the common constitutional materials that operate
as grist for the interpretive mill—text, structure, history, landmarks—are all
shared. Their existence is an inter-subjective phenomenon, a matter of social fact.
Of course, whichever is the best and most coherent interpretation of these
materials remains controversial—but the materials themselves are not. 

The manner in which this disagreement proceeds points us to the second
respect in which principles of fundamental law aim at objective coherence. Where
these disagreements persist, they engage with controversial questions of political
morality. This includes the moral and interpretive judgments that undergird
clashing claims that previous decisions were mistaken—that coherence would be
better served by plucking them from the weave altogether. The key point is that
these disagreements proceed as though there is a right answer to the question at
hand: whatever emerges from interpretive deliberation supported by the best set
of interpretive arguments.60

60. This need not rest on any mysterious philosophical notion, be it metaphysical or

metaethical. See DWORKIN, JUSTICE IN ROBES, supra note 11, at 260 (“Whether a proposition claims

objective truth depends on its content. It claims objective truth if it claims that its truth is independent

of anyone’s belief or preference: that manufacturers would be liable, on the present state of the law,

even if lawyers didn’t think so. That is all the claim of objectivity means. Whether that claim is

successful depends on the legal arguments we can offer for it, that is, on our reasons for thinking that

manufacturers would still be liable even if lawyers didn’t think so. If we think that our reasons for

thinking that are good reasons, then we must also think that the proposition that the manufacturers

are liable is objectively true.”). See also Dworkin, Objectivity and Truth, supra note 35, (suggesting

that we understand metaethical arguments as themselves a kind of substantive moral claim, and that

this is how people use them in everyday life). I have discussed the democratic character of this

approach to interpretive objectivity in David McNamee & Stephen Macedo, A Democratic



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These disagreements are driven by individual and independent judgments.
But this does not mean that individual interpreters are at liberty to decide these
questions any way they like. And here we see the third respect in which these
disagreements aim at something objective. Participants who take up the enterprise
of interpreting fundamental law encounter genuine interpretive responsibilities,
ones that emerge from the practice they share with their fellow participants.

To see how, recall the interpretive question of whether a particular arrest used
excessive force—whether it was an “unreasonable . . . seizure.” An interpreter
who takes up this question (whether it is a judge, juror, or whomever) cannot
decide the question in any manner she chooses—not, at any rate, if she is
genuinely engaged in interpreting and applying fundamental law. The reason is
that, as a claim of fundamental law, an interpretive proposition will prevail only
to the extent that the interpreter engages with the applicable standard (and, in the
final analysis, applies it rightly). Here, the operative question is both eminently
clear and undoubtedly moral: what use of force would have been reasonable
under the circumstances? And any conclusion on this score must be borne out by
interpretive arguments, directed at others, grounded in shared values and common
materials. Of course, there will be disagreement about which interpretive
arguments (if any) best succeed at generating a coherent account of those values
and materials. But that unsurprising fact of disagreement supplies no reason to
doubt the important presupposition that there is some such answer to interpretive
questions.61 As we saw before, these disagreements are predicated on a shared
assumption that there is some right answer to this question, and this democratic
premise—that we should continue to argue over this lodestar’s location and how
to orient our politics towards it—underwrites important constitutional values. 

Claims of fundamental law and the principles that mediate them subsist on
competing interpretive arguments and the common reason that negotiate those
disagreements. Indeed, the force of fundamental law (outside the verdicts,
judgments, and other binding dispositions that claims of fundamental law may
give rise to), as a set of basic principles, exists exclusively in the reasoned
interpretive arguments applying those principles. Responsible participants must
be prepared to offer those reasons to one another. But ultimately, from the
standpoint of individual interpretive responsibility, the content of fundamental
law just is the precipitate of that set of reasons, which must tip the balance of the
argument one way or another.

Each interpretive argument that deploys a principle of fundamental law
“alters” it in a sense—in applying that principle to novel circumstances, we
excavate and repurpose its legal and moral substance. But this same interpretive

Interpretation of the Right-Answer Thesis, PHIL. & L. (Am. Phil. Ass’n), Fall 2015, at 11. 

61. Indeed, following Dworkin’s case for moral realism, we can say that such skepticism

cannot stand if it is “external”—resting on some Archimedean point outside our constitutional

practices. It must instead operate internally to these practices, and global internal skepticism about

the mere possibility of right answers to any interpretive questions does not seem plausible. See

discussion and sources cited, supra note 35. 



338 INDIANA LAW REVIEW [Vol. 55:319

exercise also underscores the principle’s unalterability in another and more
enduring sense. Interpretive deliberation generates connectivity and continuity
among these principles over time. The principles remain vital through interpretive
argumentation and application to the circumstances—even as those circumstances
change, the principles remain all the same.

Feature (F2): Principles of fundamental law are accessible to
citizens’ common reason, in light of particular
circumstances.

Perhaps the most vital feature of principles of fundamental law is this
one—their accessibility to citizens’ common reason is what makes them
fundamental to a system of self-government. In his law lectures, founding figure
James Wilson insisted that “the great principles of society and government should
not only be known and recognized, but also that they should . . . make a practical
impression, deep and habitual, upon the publick [sic] mind.”62 One way to
understand this feature is that the importance of the principles explains their
accessibility. In other words, abiding by certain basic principles is necessary to
justify our political institutions—and, as a result, these basic principles should
be accessible to citizens’ common reason, if only at a high level of abstraction.

But it is also significant that Wilson stresses the “practical impression” of
these principles on the public mind—it is because citizens take part in that “great
public character” when they occupy certain roles. This is especially true for jurors
applying the principles of fundamental law to particular cases. In so doing,
citizen-jurors supply the content of those abstract principles in concrete
circumstances. And as a result, principles of fundamental law must be accessible
to citizens’ common reason—because their application is the product of citizens’
reasoning together. It is in this sense that, as Wilson notes, for the sovereign
citizen, constitutional meaning is “clay in the hands of the potter.”63 Even the old
idea of fundamental law as “custom” is not merely some antiquarian notion.
Rather, it is custom as common reason—a deliberative framework for interpretive
argument, one that develops over time through the process of citizens reasoning
together. 

A key example of this feature of principles of fundamental law is the way in
which the law of negligence folds the normative question of “reasonableness”
into the legal duties we owe one another—and the way in which the jury, as a
paradigmatic instance of citizens reasoning together about the law and its
application, determines whether a defendant has breached such a duty and caused
damage to a plaintiff. In a series of lectures given at several American law
schools in 1903, the English jurist Sir Frederick Pollock writes that “the test of
what a reasonable man’s conduct would be in the circumstances governs our
modern law of negligence,” and this standard of reasonableness “enables the law
to keep in close touch with the moral and practical sense of mankind in the affairs

62. WILSON, supra note 48, at 713-14.

63. Id. at 712. 



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of life.”64 Importantly, this standard evolves over the centuries, because the law’s
“conclusions in detail were not dogmas, but flexible applications of living and
still expanding principles: The knowledge and resources of a reasonable man are
far greater in the twentieth than in the sixteenth or the eighteenth century, and
accordingly so much the more is required of him.” And, as a result:

A defendant must clear himself by showing, not that he acted to the best
of his own judgment, or with a degree of prudence that would have been
sufficient in the Middle Ages, but that his action was such as is to be
expected here and now from a man competent so far as any special
competence was required in the business he was about, and otherwise not
below the general standard of a capable citizen's information,
intelligence, and caution.65

Negligence, at its core, is a paradigmatic instance of this second feature of
fundamental law in action. Its governing standard of reasonableness is accessible
to citizens’ common reason, and the particularized content of that standard
emerges from a holistic judgment, distilled through the reasoned arguments
citizen-jurors offer one another in their deliberations. And though negligence is
noteworthy in this regard, it is hardly unique—we can imagine a number of
scenarios where a conscientious citizen engaging in interpretive deliberation
involving questions of fundamental law, as a voter, juror, or otherwise. 

Feature (F3): Principles of fundamental law are justifiable to
citizens’ common reason, in that they track
constitutional justice over constitutional time.

This brings us to another important delineation: how to distinguish the
normative force of fundamental law from other moral sources—especially, for
citizens as actors operating within institutions, what justice requires of them. 

Begin with a brief note on actors’ all-things-considered moral obligations.
One consensus view among philosophers of political obligation is that a claim to
legal authority will give rise to a pro tanto, defeasible obligation66 that can be
overridden by, for example, considerations of justice. Put more simply: legal
authority creates reasons for action. The account of fundamental law that I
advance here generates a different sort of duty: a deliberative responsibility, the

64. FREDERICK POLLOCK, EXPANSION OF THE COMMON LAW 108 (1904). Cf. DWORKIN, LAW’S

EMPIRE, supra note 11, at 413.

65. POLLOCK, supra note 64, at 124.

66. See, e.g., Stephen Perry, Political Authority and Political Obligation, in 2 OXFORD

STUDIES IN PHILOSOPHY OF LAW (Leslie Green & Brian Leiter eds., 2013), at 22 (“If the state’s

legitimate power to issue obligation imposing directives has in all cases been exercised correctly,

then every directive it has issued not only purports to impose an obligation but does in fact impose

an obligation, from which it follows that we have, at the very least, a pro tanto obligation to obey each

and every such directive; in that sense, we have a general obligation to obey the law”).



340 INDIANA LAW REVIEW [Vol. 55:319

obligation to engage in interpretive argument. This duty is also defeasible and can
similarly be overridden by justice. Other moral considerations might matter as
well; for example, it is not obvious how valuable it would be for a theocrat or a
Marxist to engage in sustained interpretive argument about how to understand the
fundamental law of the American Constitution in its best light. Still, I would think
that some principles of fundamental law, such as the idea that no one should be
the judge in her own case, would nonetheless appeal even to these sorts of
illiberal perspectives. The presence of such a pro tanto obligation to engage in
interpretive argument is a significant contribution to citizens’ moral calculus. 

The content of principles of fundamental law will predictably depart from
what justice requires (although, of course, there will be considerable
disagreement about how extensive that departure is) in three respects. First, as we
have seen, fundamental law must be rooted in the constitutional materials,
broadly understood. To the extent that those materials depart from what principles
of justice require of background institutions,67 there will be some daylight
between those principles of justice and principles of fundamental law, applied to
American constitutionalism. 

Second, however, fundamental law is orientational—in that its principles aim
to orient these materials towards constitutional justice. This is a more
particularized conception of justice than abstract justice, full stop—in that it grips
the set of particular constitutional materials and propels them towards a more
perfect realization of justice. Constitutional justice requires more than the mere
accessibility of principles of fundamental law, in terms of citizens’ common
reason. These claims must also be justifiable to citizens, in a certain way. To aim
at constitutional justice is to engage with extant and colorable claims of
fundamental law (like “Black Lives Matter”)68 so that they justify the
constitutional order, across constitutional time, in ways that promote citizens’
constitutional bases of respect. These include the core civic interests that all
citizens will share in virtue of that common status—in particular, the institutional
foundations of individual citizens’ self-worth, as well as their deliberative
interests in participating in an enduring project.69 

Third, and relatedly, fundamental law—as oriented towards constitutional
justice—can ply this gap between the possibility of justice and the existence of
unjust background institutions because constitutional justice and its focus on
institutional meaning (and not just institutional forms) is temporal, in a way that
we will explore more fully in the next Part. 

B. Fundamental Rights: Respect, Recognition, and Animating Abstraction

This Article is, in part, a precis for a larger theory of fundamental law that
vests in citizens the principal responsibility for interpreting their Constitution.

67. See, e.g., JOHN RAWLS, A THEORY OF JUSTICE (rev. ed. 1999).

68. See McNamee, supra note 33.

69. See id. at 47. I discuss these ideas further in the next section on the recognitional interests

underlying fundamental rights claims. 



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The previous section laid the historical basis for the idea of fundamental law,
analyzed the concept, and motivated its normative appeal. I have also suggested
that this claim about responsibility complements another theoretical move
addressing the question of constitutional fidelity in a fresh and novel way: as
keeping faith with fellow citizen interpreters, across pitched disagreements in the
present and across constitutional time. But before we get to that idea, I want to
take up a different concept—the idea of fundamental rights. Once we have in
place the notion of the Citizens’ Constitution as fundamental law, fundamental
rights take on a different cast: not the objects of beneficent protection by the
courts, but a set of urgent claims that pierce through politics as a matter of
constitutional justice. 

In that light, I want to confront another emergent trend in liberal
constitutional theory: what I will call fundamental rights skepticism. This is not
skepticism about the content or soundness of any particular right claim,70 which
is part and parcel of ongoing interpretive argument.71 Instead it presents a more
general and far-reaching skepticism about any set of fundamental rights that
demarcate a certain set of claims as especially pressing, which require resolution
outside of and even protection from the realm of ordinary politics. The classic
menu of liberal theories we scanned in the introduction, for example, all have
their own formulations for which rights are fundamental—for Dworkin, they are
the rights that best fit and justify our constitutional materials as a matter of
political morality; for Ackerman, they emerge from the proper interpretive
synthesis of the Founding, Reconstruction, and the New Deal; for Ely, they are
the rights that best protect the political process—but each view (along with many
more) endorses a category of rights that warrant special protection by the courts.
But a recent turn in the literature has suggested a different course: “Rejecting
Rights,” as political theorist Sonu Bedi aptly titles his monograph. On Bedi’s
account, a “court ought only to look at the legislative purpose behind a particular
law rather than the alleged right it violates,” and when “we turn our normative
attention to reasons, realizing that the polity has no good reason to regulate
activity this way [criminalizing sodomy], rights turn out to be unnecessary.”72

Libertarians such as Randy Barnett have made similar arguments in favor of a

70. See Jeremy K. Kessler & David E. Pozen, The Search for an Egalitarian First Amendment,

118 COLUM. L. REV. 1953 (2018); Catharine A. MacKinnon, Weaponizing the First Amendment: An

Equality Reading, 106 VA. L. REV. 1223 (2020); see also J.M. Balkin, Some Realism About

Pluralism: Legal Realist Approaches to the First Amendment, 1990 DUKE L. J. 375, 379-82 (1990)

(analyzing and comparing left critiques of the First Amendment to legal realist critique of formal

freedom of contract based on inequalities of bargaining power and the porousness of the distinction

between public and private domains).

71. See Dworkin, Objectivity and Truth, supra note 35, at 129-38 (arguing that “internal

skepticism” of various kinds ultimately rests on some kind of substantive interpretive argument); see

also DWORKIN, LAW’S EMPIRE, supra note 11, at 78-84; DWORKIN, JUSTICE FOR HEDGEHOGS, supra

note 35.

72. SONU BEDI, REJECTING RIGHTS 5-6 (2009).



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“presumption of liberty,” in lieu of a special judicially-maintained set of
enumerated and unenumerated rights.73 

In particular, I will engage with a recent argument from Jamal Greene.74

Greene’s core contention is that any theory—and more importantly, any
practice—of fundamental rights protection proves to be unworkable and inimical
to deliberation about important questions of political morality. Fundamental
rights are unworkable because they invariably lead to an explosion of claims
elbowing for protective status within the special category whose analytical
boundaries will not hold.75 And even for the important claims, the judicialized
strictures of text and doctrine bleed fundamental rights dry of their moral energy,
distorting the claims themselves and the deliberation they might otherwise drive.
Greene writes that the inevitable need for judicially-imposed limits will “track a
judge’s capacity to isolate and discipline a right rather than tracking the
reasonableness of the state’s actual behavior. This is how we get rock-ribbed
rights to guns and data scraping and corporate election spending, but no rights to
food and shelter and education.”76 Atop this enervation is yet another heavy
deliberative cost: rights talk fuels extreme rhetoric, transforming the courtroom
from a forum of principle into “a legal Guernica cluttered with slippery slopes,
law school hypotheticals, and assorted horribles on parade,”77 precluding
pragmatic compromise that might balance the interests at stake. This “frame
requires us to formulate constitutional politics as a battle between those who are
of constitutional concern and those who are not. It coarsens us, and by leaving us
farther apart at the end of a dispute than we were at the beginning, it diminishes
us.”78

Giving up on fundamental rights opens up a different approach consonant
with Bedi’s and Barnett’s proposals: focusing judicial review on the reasons for
government action, rather than artificial categorization and the pathologies that
fundamental rights talk brings with it. There is much to commend Greene’s
account—to at least some extent, by dialing down the absolute character of rights
claims, he attempts to divert the Court from deciding the major political questions
of the day in favor of a broader political conversation among the citizenry. And
he admirably seeks to bridge deep disagreements about basic constitutional
principles, echoing Jeremy Waldron’s doubts that the institution of judicial

73. RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY

(2005).

74. JAMAL GREENE, HOW RIGHTS WENT WRONG: HOW OUR OBSESSION WITH RIGHTS IS

TEARING AMERICA APART (2021). See also Jamal Greene, Foreword: Rights as Trumps?, 132 HARV.

L. REV. 28 (2018).

75. GREENE, supra note 74, at 249 (“Absolute rights cannot be, as rights are, ubiquitous, so

courts artificially limit what counts”).

76. Id.

77. Id. at 31. 

78. Id. at 34; see MARY ANN GLENDON, RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL

DISCOURSE 14 (1991).



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review promotes that discussion.79 
Ultimately Greene’s view fails, however, because of its deflationary approach

to rights. Because he believes that rights-talk as practiced simply heightens
conflict and raises the stakes in controversies, his goal is to boil grand questions
about abstract rights down to particularized, fact-bound disputes—the sort of
contextualized and circumstantial resolutions that minimalist judges are well-
suited to provide.80 This logic is clearest when Greene insists that there are rights
on all sides in most disputes. For liberals, this insight is welcome when a more
blinkered approach obscures meritorious rights claims, and the appropriate course
of action is instead a more expansive conversation about the contours of socio-
economic rights or the pervasiveness of racial discrimination in our institutions.81

But I fear that, more often, Greene’s chosen approach is to shrink down rights
talk to fit the interests against which they are to be properly balanced—as in the
case of the West German woman’s asserted right to feed the pigeons in the public
square. 

The answer to [whether such a right is fundamental] is clearly yes . . . .
If pigeon feeding was an important part of what made this woman’s life
meaningful, then she had a right to feed the pigeons. That’s what a right
is. 

But just because the woman had a right to feed pigeons didn’t mean
she should win her case. In this rights dispute, as in any other, the judges
had to ask whether the government had good reasons for acting as it
did.82

With countervailing reasons (ranging from public health to transportation to
preventing property damage) washing over the right in question—even though
being “an important part of what makes” a person’s “life meaningful” is just
“what a right is”—the content of what makes a right fundamental and the import
of that claim become remarkably thin. Implicit in this discussion may be a key
question that Greene more or less spells out: what is lost, really, if we alter our
relationship rights so that individual kooks and bird ladies no longer have veto

79. See Waldron, The Core of the Case Against Judicial Review, supra note 15; JEREMY

WALDRON, LAW AND DISAGREEMENT (1999).

80. Cf. CASS R. SUNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME

COURT (1999) (arguing for a minimalist approach to judicial decision making to promote democratic

deliberation).

81. GREENE, supra note 74, at 94-99 (criticizing the Court’s decision in San Antonio Indep.

Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973), to reject a fundamental right to education); GREENE,

supra note 74, at 106-07 (criticizing McCleskey v. Kemp, 481 U.S. 279 (1987), for its refusal to

acknowledge a disparate impact theory under the Equal Protection Clause in a challenge to the

constitutionality death penalty because, as Justice Brennan memorably wrote in dissent, it would

invite “too much justice” (quoting id. at 339 (Brennan, J., dissenting))).

82. GREENE, supra note 74, at 92.



344 INDIANA LAW REVIEW [Vol. 55:319

power over our broader politics? That was the problem in Lochner v. New
York83—the rush to theory and fundamental rights talk settled the question,
closing down the conversation when instead it should have served as an opening
deliberative bid. Deflating our conception of rights, on this account, can only be
healthy. 

This view is mistaken. The answer instead must be that, at a concrete level
of particularity, there is no fundamental right to feed the pigeons, and that at a
higher level of abstraction, such a law does not burden her basic liberty to
determine important questions about her life and what makes it valuable.84 But
there are other rights that are fundamental—where such an infringement violates
basic interests that we share in common as citizens, as members of a free
community of equals—in light of our custom and our law, mediated by our
common reason. The problem with Greene’s (and Bedi’s, and Barnett’s) account
of rights is that they lose sight of what is most important about fundamental right
claims—what separates those kinds of arguments from other considerations in
politics. What makes rights fundamental are the stakes of collective recognition
and individual self-respect. Greene misunderstands why fundamental rights are
important, and for the remainder of this Section I will attempt to explain those
recognitional stakes and illustrate them as a vital part of our constitutional
tradition. 

But first I want to note an important corollary: not only does Greene
misunderstand why fundamental rights matter, but he also misdiagnoses what
might be wrong with them in the current state of American constitutional law.
The problem is not so much with rights in and of themselves. Instead, the
problem is with judicial supremacy—with courts getting the rights wrong and
protecting the wrong rights. But, to state the obvious, the answer here is not to
abandon fundamental rights altogether, or to deflate the content of fundamental
rights so much as to render them indistinguishable from other considerations in
ordinary politics. Instead, the answer is to get fundamental rights right, including
through mechanisms of constitutional politics outside of courts. Indeed, the entire
paradigm of an unworkable rights explosion presupposes that courts must
perform the fussy doctrinal work of sorting and categorizing rights properly. But
the Citizens’ Constitution as fundamental law offers an entirely different
paradigm. With citizens as the prime movers in constitutional interpretation,
fundamental rights need not be so pathological. Outside the context of litigation,
fundamental rights need not be so divisive.85 And their articulation is no longer
the technical craft of judicial opinions written by and for legal elites, but rather
a matter of broad public debate, driven by social movements and the politics of
persuasion. 

Greene wants to push the domain of constitutional justice away from

83. 198 U.S. 45 (1905). Greene discusses Lochner and its dominant influence over theoretical

debates for the past hundred years in GREENE, supra note 74, at 40-86. 

84. This discussion prefigures the problem of levels of abstraction, which I address later in this

Section. See text accompanying infra notes 128-40.

85. See infra discussion accompanying notes 104-40, 197-205. 



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interpretation, which inherently engenders disagreement, into the realm of the
“empirical,” towards fact-bound particularizations of the sort that is familiar to
judicial inquiry:

Justice means that we must confront the government’s actual behavior,
the legislature or executive’s actual motives, the actual evidence
available, and the degree to which individuals are actually burdened by
the government practices that restrict our liberty or favor one person’s
rights over another’s. These questions are empirical, not interpretive,
because justice isn’t abstract or literary or historical, but rather depends
on the facts in the here and now. . . . Unsurprisingly, the rights judges
declare us to have end up aligning with their own subjective sense of
what is needed for a well-lived life. Rights stop being about justice and
start being about the justices. We forget ourselves along the way.86

This is a fair criticism of the familiar model where judges are the principal
players responsible for interpreting the Constitution. But the Citizens’
Constitution as Fundamental Law answers this responsibility question differently,
giving citizens pride of place. And its answer to the question of fidelity does not
depend on some undertheorized notion of what is “empirical” as opposed to
“interpretive.” Instead, it insists that we, the citizens, keep faith with one another
as fellow participants in the project of constitutional interpretation. This endeavor
is, contrary to Greene, unabashedly interpretive, scaling different heights of
abstraction, drawing on history and even controversial judgments of political
morality. It is difficult to see how an undertaking about constitutional justice
could be otherwise. Greene cannot avoid the problem of disagreement by hiding
behind question-begging characterizations about “actual” phenomena as opposed
to “subjective” judgments, nor by emphasizing the kind of fact-intensive
proportionality approach he wishes that American judges would adopt.
Constitutional justice is not a matter of judicial fact-finding that settles
disagreements about rights once and for all—judges can at most do that work
once case (and one set of parties) at a time.87 And why shouldn’t it be the jury’s
role to decide these factual questions?88 Instead constitutional justice is a matter
for citizens to continue to argue about—how our fundamental law serves as an
enduring social contract that rightfully claims our ongoing allegiance. This brings
us to the feature that distinguishes certain rights as fundamental: their

86. GREENE, supra note 74, at 93-94. In the earlier article, Greene writes that “[w]ithin a

mature rights culture, the typical cases that reach deep into the appellate courts and up to the Supreme

Court do not arise from the wholesale denials of citizenship that preoccupied Dworkin but rather from

workaday acts of governance from which individuals seek retail exemption.” Id. at 32. One of my

fears is that this assessment may hold less true and that the judiciary is a large part of the problem.

87. See SUNSTEIN, supra note 80; see generally William Baude, The Judgment Power, 96 GEO.

L.J. 1807 (2008).

88. Cf. GREENE, supra note 74, at 12-16, 24-29 (noting the prominence of the jury in

interpreting and applying the Bill of Rights).



346 INDIANA LAW REVIEW [Vol. 55:319

recognitional stakes. 
For the remainder of the Section, I want to develop this important implication

of my account of fundamental law—how it emphasizes the recognitional stakes
of fundamental right claims and the way they promote citizens’ constitutional
bases of respect. Elsewhere I have suggested that there are two components of
citizens’ constitutional bases of respect.89 First is the mutual recognition of fellow
citizens’ equal status that occurs through their joint participation in a common
enterprise: the deliberative process of ongoing interpretive argument about basic
principles of fundamental law. By engaging in constitutional interpretation and
directing their arguments to one another, citizens perform and create a basic
foundation of respect for one another. We can see that marker of citizens’ equal
status on display in the historical materials and examples in the previous Section.
The second component of the constitutional bases of respect is a more substantive
one: that the particular content of the principles animating our basic
institutions—in Rawls’s term, our “constitutional essentials”90—promotes
citizens’ self-respect, reinforcing their free and equal status. The constitution as
a social contract must affirm and substantively promote citizens’ self-respect. It
is by securing that freedom and equality that inheres in citizenship, by orienting
our constitutional principles towards justice, that the constitution as a social
contract earns our endorsement. 

This relationship between justice and self-respect requires further exploration.
In constructing his theory of distributive justice, Rawls develops the idea of
interpersonal comparison by looking at the distribution of “primary goods.”
These are, for the most part, income and wealth, resources, opportunities—the
sort of all-purpose means that any person would want in order to live well and
advance their conception of a good life, regardless of what the particular content
of that conception might be.91 This idea is important for Rawls because, in his
theory, principles of justice must be chosen in the Original Position behind a “veil
of ignorance” by parties who do not know either their position within society or
the particular content of their conception of the good.92 But Rawls is careful to
note that “perhaps the main” or “most important” primary good to a theory of
distributive justice is “the social bases” of “self-respect”—the sense, reflected on
the face of shared institutions, of one’s own worth, that one’s projects and plans
have purpose and meaning, that from a social point of view there is value in
carrying them out.93 “This democracy in judging each others’ aims is the
foundation of self-respect” in a just society, where “in public life citizens respect
one another’s ends and adjudicate their political claims in ways that also support
their self-esteem. It is precisely this background condition that is maintained by
the principles of justice.”94 

89. See McNamee, supra note 33, at 47.

90. RAWLS, supra note 48, at 227.

91. See RAWLS, supra note 67, at 79-80.

92. See id. at 118-19. 

93. Id. at 155, 386, 477-78.

94. Id. at 388.



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Philosopher Tommie Shelby has helpfully clarified the Rawlsian picture of
self-respect in two further ways. First, he disentangles a conflation in Rawls’s
thinking between self-esteem—the idea that “we regard our fundamental ends as
valuable and consider ourselves competent to secure those ends”—and self-
respect: “a matter of recognizing oneself as a rational agent and a moral equal and
valuing oneself accordingly . . . [as] embodied and expressed in the way one
conducts oneself.”95 Whereas the former idea is fundamentally an attitude about
one’s projects and plans, the latter is an attitude about one’s worth and equal
status—or lack thereof—as a member of the political community, and it is
particularly vulnerable to forms of oppression. Second, Shelby highlights how
this distinct concept of self-respect is useful in unjust circumstances, allowing
individuals to resist injustice “as a matter of living with a sense of moral pride
despite unjust conditions” and even as they insist on their own equal status within
the political community, properly understood.96

One clear assertion of self-respect that lays bare the psychic damage of unjust
oppression is King’s response in his Letter from Birmingham Jail to white
moderates imploring civil rights activists to delay direct action and instead, wait:

[W]hen you have seen vicious mobs lynch your mothers and fathers at
will and drown your sisters and brothers at whim; when you have seen
hate-filled policemen curse, kick, brutalize and even kill your black
brothers and sisters with impunity; when you see the vast majority of
your twenty million Negro brothers smothering in an air-tight cage of
poverty in the midst of an affluent society; when you suddenly find your
tongue twisted and your speech stammering as you seek to explain to
your six-year-old daughter why she can’t go to the public amusement
park that has just been advertised on television, and see tears welling up
in her little eyes when she is told that Funtown is closed to colored
children, and see the depressing clouds of inferiority begin to form in her
little mental sky . . . . then you will understand why we find it difficult
to wait.97

King’s powerful words illustrate how oppressive institutions insidiously work to
undermine citizens’ self-respect through the expressive power of their very

95. TOMMIE SHELBY, DARK GHETTOS: INJUSTICE, DISSENT, AND REFORM 97-98 (2016).

96. Id. at 99-100; see also id. at 105-08, 197-200 (criticizing the moral paternalism of

respectability politics and the expressive harm of work requirements on the grounds that they

undermine citizens’ self-esteem and self-respect); id. at 276 (suggesting that “noncompliance with

societal expectations—refusing to delay childbearing, to marry, to accept low-paying and demeaning

jobs, to respect the law, and to submit to other ‘mainstream’ norms can be a healthy expression of

self-respect and a morally rooted opposition to the status quo, not mere nihilism or despair . . .

draw[ing] our attention to the failure of reciprocity embedded in the social institutions and informal

practices that constitute the structure of our society”). 

97. Martin Luther King, Jr., Letter from Birmingham City Jail, in CIVIL DISOBEDIENCE IN

FOCUS 68, 72-73 (Hugo Adam Bedau ed., 1991).



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structure—imposing the burden of articulation on King, who tries and fails to find
the words to name his and his daughter’s inferior status. Public injustices convey
this indignity, from formal prohibitions of the right to contract and property in the
Black Codes, to informal barriers to vote, to refusing lunch counter service.98 

Charles Beitz discusses this same phenomenon in the different context of
John Stewart Mill’s plural voting proposal, to essentially dilute the votes of
uneducated members of the populace. A significant cost here is “the effect on
self-esteem likely to be produced when political inequalities reflect other natural
or social distinctions that are the objects of invidious discrimination or are
occasions of disrespect in society at large.” The degradation of “visible dilution
of influence will appear as an insult, conveying public approval of pre-existing,
demeaning social practices.”99 Beitz draws a connection to broad exclusion of
Black citizens from the franchise, in such a way that “those excluded ‘are not
publicly recognized as persons at all’ and might be described as ‘socially
dead.’”100 The same is true, at least as a matter of degree, with racial vote dilution:
“[t]hose singled out as less worthy are demeaned and insulted; they are
encouraged to feel that patterns of disrespect that exist in society at large enjoy
official sanction. It would be reasonable for anyone to object to”—in other words,
a social contract would properly reject—such “procedural arrangements that had
this effect.”101 Moreover, this objection does not stem merely from the subjective
toll taken on citizens demeaned by public practices, but rather from “a more
objective foundation”: 

98. These emanations of citizenship correspond in a way with the “badges and incidents of

slavery” by which courts under the Thirteenth Amendment have evaluated the extent of abolition.

The reach of the Thirteenth Amendment’s prohibition must extend beyond the mere practice of

chattelization and reach into Reconstructing the social institutions that constituted Slave Power in

the antebellum era. See James Gray Pope, Section 1 of the Thirteenth Amendment and the Badges and

Incidents of Slavery, 65 UCLA L. REV. 426, 436-42 (2018); AKHIL REED AMAR, AMERICA’S

CONSTITUTION: A BIOGRAPHY 362-63 (Random House, 2005); see also Jones v. Alfred H. Mayer

Co., 392 U.S. 409, 441-43 (1968) (“Just as the Black Codes, enacted after the Civil War to restrict

the free exercise of those rights, were substitutes for the slave system, so the exclusion of Negroes

from white communities became a substitute for the Black Codes. And when racial discrimination

herds men into ghettos and makes their ability to buy property turn on the color of their skin, then it

too is a relic of slavery.”).

99. CHARLES R. BEITZ, POLITICAL EQUALITY: AN ESSAY IN DEMOCRATIC THEORY 37 (1989)

(emphasis added). For a social contract conception of political equality that rejects Mill’s aggregative

consequentialism in favor of justifications that must appeal to those disadvantaged by a policy, see

id. at 100-17. 

100. Id. at 109 (first quoting John Rawls, Justice as Fairness: Political not Metaphysical, 14

PHIL. & PUB. AFF. 243 (1985); and then citing ORLANDO PATTERSON, SLAVERY AND SOCIAL DEATH

(1982)).

101. Id. at 110. I leave to the side the technical philosophical specifications of Beitz’s

contractualist account, under which fair terms of social cooperation are established according to

principles that no participant motivated to reach agreement would reasonably reject. See id. at 100-

17; cf. T.M. SCANLON, WHAT WE OWE TO EACH ANOTHER (rev. ed. 2000); RAWLS, supra note 67. 



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because it is a fixed point in a democratic culture that public institutions
should not establish or reinforce the perception that some people’s
interests deserve less respect or concern than those of others simply in
virtue of their membership in one rather than another social or ascriptive
group. The political roles define by democratic institutions should
convey a communal acknowledgment of equal individual worth.102

From these examples of constitutional injustice, we can also project the opposite
effect of fundamental rights that would promote citizens’ constitutional bases of
respect. This is what Rawls and Shelby mean when they talk of a democratic
basis for citizens judging one another’s aims and worth, as written on the face of
their institutions. And this discussion of recognition and respect points to a
different way of thinking about rights, anchored in the inviolable nature of a
certain equal status, which all rights-bearers share.103 

Following John Hart Ely’s lead, Greene takes a walking tour through the Bill
of Rights to illustrate his central thesis. For Ely, the core point is to illustrate the
procedural nature of the lion’s share of constitutional protections.104 For Greene,
the purpose is to show that these rights are not so similar to “‘rights’ as we
understand them today—protective of politically powerless dissenters, enforced
by courts against majorities, and presumptively absolute.”105 This is largely true
as a historical matter. But if we survey not just the founding conception of those

102. BEITZ, supra note 99; cf. discussion accompanying supra notes 60-61 (related but different

notion of objectivity).

103. Other authors have, of course, noted the connection between respect, recognition, and

rights that threads throughout the Kantian tradition. See Thomas Nagel, Personal Rights and Public

Space, 24 PHIL. & PUB. AFF. 83, 85-89 (1995); see also DWORKIN, supra note 59, at 278 (explaining

the core idea of equal concern and respect for persons); DWORKIN, supra note 2, at 22-26 (developing

the related idea of moral membership within a political community); Jeremy Waldron, Pildes on

Dworkin's Theory of Rights, 29 J. L. STUD. 301 (2000) (unpacking Dworkin’s metaphor of rights as

trumps as consonant with these related ideas); HABERMAS, supra note 53, at 122-31, 251 (describing

citizens as both authors and addressees of law whose mutual recognition leads to the co-originality

of public and private autonomy, which in turn generates substantive protections for citizens' freedom

and equality); COREY BRETT SCHNEIDER, DEMOCRATIC RIGHTS: THE SUBSTANCE OF SELF-

GOVERNMENT (2007) (discussing fundamental democratic rights of democratic citizenship,

protecting citizens’ free and equal status); Corey Brettschneider & David McNamee, Sovereign and

State: A Democratic Theory of Sovereign Immunity, 93 TEX. L. REV. 1229, 1235-39 (same);

Benjamin Eidelson, Respect, Individualism, and Colorblindness, 129 YALE L. J. 1600 (2020)

(explaining the centrality of recognition and respect for personhood in antidiscrimination law). My

account is distinctive, first, in its emphasis on citizens’ role in interpreting as well as bearing rights;

and second, in the way it treats the history, custom, and tradition that inform fundamental rights

claims as objects of interpretation.

104. See ELY, supra note 9, at 95-100; cf. AMAR, supra note 98 (adopting this general approach

as the organizational structure of the entire book).

105. GREENE, supra note 74, at 13. 



350 INDIANA LAW REVIEW [Vol. 55:319

fundamental rights, but also the modern discourse that drives ongoing interpretive
contestation about what they mean and what they require of us, then the
recognitional stakes of fundamental rights remain central.

Just look to the First and Second Amendments. The initial guarantee in the
Bill of Rights is against a law respecting the establishment of religion. As Justice
O’Connor has famously articulated, the Establishment Clause protects citizens’
interest in equal recognition:

The Establishment Clause prohibits government from making adherence
to a religion relevant in any way to a person’s standing in the political
community. . . . [G]overnment endorsement or disapproval of religion .
. . sends a message to nonadherents that they are outsiders, not full
members of the political community, and an accompanying message to
adherents that they are insiders, favored members of the political
community. Disapproval sends the opposite message.106

This fundamental interest in equal recognition is not implicated, according to
Justice O’Connor, by prominent invocations of “God” on our currency and in our
courts. These instances of ceremonial deism, “because of their history and
ubiquity . . . are not understood as conveying government approval of particular
religious beliefs.”107 At the core of this right, then, is the right-holder’s self-
respect—as mediated by various institutional forms that may promote that self-
respect on an equal basis or, alternatively, undermine it through disapproval. And,
perhaps surprisingly, this core concept is shared even by more stringent
approaches to the Establishment Clause. In his dissent in Lee v. Weisman, Justice
Scalia admits that “our constitutional tradition . . . has . . . ruled out of order
government-sponsored endorsement of religion—even when no legal coercion is
present, and . . . where the endorsement is sectarian”.”108 And even Justice
Scalia’s stricter standard prohibiting “coercion of religious orthodoxy and of
financial support by force of law and threat of penalty” continues to track the core
interest of the right-holder’s self-respect—the harm of such coercion is the
violence by public institutions inflicted on the nonbelieving citizen’s innermost
convictions.109 This is a narrower interpretation of the same shared concept,
which illustrates the constitutional bases of respect.

We can conduct a similar analysis of the Free Exercise Clause. As Justice
Kennedy wrote in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights
Commission:

106. Lynch v. Donnelly, 465 U.S. 668, 687-88 (1984) (O’Connor, J., concurring). Note, in ways

similar to what Beitz, supra note 99 emphasizes, that this is an inquiry into both the “subjective and

the objective components” of the intended meaning. Lynch, 465 U.S. at 690.

107. Id. at 693; cf. id. at 716 (Brennan, J., dissenting) (suggesting that such forms of “ceremonial

deism” survive “Establishment Clause scrutiny chiefly because they have lost through rote repetition

any significant religious content”).

108. Lee v. Weisman, 505 U.S. 577, 641 (1992) (Scalia, J., dissenting). 

109. Id. at 640 (emphasis removed); see also Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct.

2246, 2264 (2020) (Thomas, J., concurring) (quoting Weisman, 505 U.S. at 640).



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the government, if it is to respect the Constitution’s guarantee of free
exercise, cannot impose regulations that are hostile to the religious
beliefs of affected citizens and cannot act in a manner that passes
judgment upon or presupposes the illegitimacy of religious beliefs and
practices. The Free Exercise Clause bars even “subtle departures from
neutrality” on matters of religion.110

Again, at the heart of this right is a protection against official animosity and
hostility visited upon a citizen’s religious beliefs and practices. Such motivations
cannot serve as legitimate governing purposes because they fatally compromise
the equal respect and recognition that every citizen is owed from the institutions
that govern in our name. The Court’s continuing concern for “status-based
discrimination” under the Free Exercise Clause only confirms this connection to
the constitutional bases of respect.111

The same overtones of recognition and respect resonate in the First
Amendment’s protection of the freedom of speech. Echoing the same core logic
of the religion clauses, Justice Jackson sonorously wrote that the First
Amendment forbids compelled speech because, “[i]f there is any fixed star in our
constitutional constellation, it is that no official, high or petty, can prescribe what
shall be orthodox in politics, nationalism, religion, or other matters of opinion,
or force citizens to confess by word or act their faith therein.”112 The prohibition
against content-based restrictions publicly promotes citizens’ self-respect because
it places the ultimate responsibility for discerning the truth about these matters of
fundamental importance in citizens themselves— through our “profound national
commitment to the principle that debate on public issues should be uninhibited,
robust, and wise-open.”113 This concern for nondiscrimination and equal
recognition of citizens is pronounced even in the minutiae of public forum
doctrine:

There is an “equality of status in the field of ideas,” and government
must afford all points of view an equal opportunity to be heard. Once a
forum is opened up to assembly or speaking by some groups, government
may not prohibit others from assembling or speaking on the basis of what
they intend to say. Selective exclusions from a public forum may not be
based on content alone, and may not be justified by reference to content
alone.114

Ultimately, however, the most telling evidence for the recognitional stakes for the

110. 138 S. Ct. 1719, 1731 (2018) (quoting Church of Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520, 534 (1993)). 

111. Espinoza, 140 S. Ct. at 2257.

112. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).

113. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

114. Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 96 (1972) (quoting ALEXANDER MEIKLEJOHN,

POLITICAL FREEDOM: THE CONSTITUTIONAL POWERS OF THE PEOPLE 27 (1948)).



352 INDIANA LAW REVIEW [Vol. 55:319

freedom of speech and its connection to the constitutional bases of respect is not
to be found in the pages of the U.S. Reports. Instead, as Stephen Shiffrin writes,
it is the role that this liberty plays in how citizens understand themselves as both
free and equal as individuals and part of a democratic polity:

American citizens not only feel a deep emotional attachment to the
country, but also that an important source of that attachment is a sense of
pride about the first amendment. . . . It plays an important role in the
construction of an appealing story, a story about a nation that promotes
an independent people, a nation that affords a place of refuge for peoples
all over the globe, a nation that welcomes the iconoclast, a nation that
respects, tolerates, and even sponsors dissent. So understood, it is a
nation whose citizens can come to regard themselves as a part of
something larger than themselves without losing a sense of freedom. . .
. It encourages us to picture Walt Whitman's citizenry—vibrant, diverse,
vital, stubborn, and independent. It encourages us to believe with
Emerson that “America is the idea of emancipation.”115

In this way, the First Amendment integrates how we see ourselves as both free
and equal individuals and as fellow participants in the joint project of democratic
self-government. It thus anchors our mutual recognition for one another and
partially grounds the institutional basis for our self-respect.

Perhaps surprisingly, we can also find recognition- and respect-based
conceptual moorings for the Second Amendment’s right to keep and bear arms.
David Kopel observes the same conceptual interplay between individual liberty,
responsible citizenship, and democratic self-government, drawing an express
parallel between the animating logic of both Amendments:

The First Amendment is not only a means for self-government; it is the
method by which mature self-governance is supposed to be learned. The
Second Amendment is exactly the same. The affirmation of the
importance of the militia puts national and community self-defense
directly in the hands of the responsible citizenry. The Second
Amendment citizen is courageous and vigilant in safeguarding God-
given rights against infringement. The Second Amendment citizen is
skilled and practiced in the use of arms to defend those rights when
necessary. Rather than being submissively dependent solely on the
government for personal and community security, the Second
Amendment citizen takes responsibility for protecting herself and her
community.116

The virtuous and simultaneous exercise of an individual’s basic rights and the
promotion of the common good through democratic citizenship locates the right

115. STEVEN H. SHIFFRIN, THE FIRST AMENDMENT, DEMOCRACY, AND ROMANCE 159 (1990)

(quoting RALPH WALDO EMERSON, EMERSON IN HIS JOURNALS 428 (Joel Porte ed., 1984).

116. David Kopel, The First Amendment Guide to the Second Amendment, 81 TENN. L. REV.

417, 457 (2014).



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as an essential basis of our self-respect. Tanya K. Metaksa deepens this claim by
expanding on the connection between the Second Amendment, the fundamental
right to self-defense, and even more abstract rights such as safety.117

The Second Amendment simultaneously promotes individual liberty and
responsibility, constituting the boundary between a space where each citizen can
contribute to responsible and collective self-government and, on the other side of
the fence, a private domain of safety that legitimate government can never
undermine, but which we are responsible for defending ourselves. 

These conceptual linkages are clear in Charlton Heston’s moralized rhetoric
about the Second Amendment. He begins with an express invocation of the
culture wars—exhorting the reader to do what is right and take up the “purpose,”
“power,” and “pride” that accompany the exercise of the right to keep and bear
arms:

There is only one way to win a cultural war. Do the right thing. . . . I
promised to try to reconnect you with that sense of purpose, that compass
for what’s right, that already lives in you. To unleash its power, you need
only unbridle your pride and re-arm yourself with the raw courage of
your convictions. . . . [I]f you want to touch the proud pulse of liberty
that beat in our founding fathers in its purest form, you can do so through
the majesty of the Second Amendment right to keep and bear arms.118

Framed as such, the right promises to be a source of dignity and self-respect, the
“pur[e]” and “proud pulse of liberty” inherited from the founding generation.119

More than that, Heston deploys metonymy so that the weapon itself stands in for
“the raw courage of [our] convictions,” with which we are to “re-arm” ourselves,
releasing our pride from bridled restraint and regulation.120 On this logic, the right
and the object it protects become central to the citizens’ core commitments and
even how we conceive of ourselves as persons. Heston continues:

Because there, in that wooden stock and blued steel, is what gives the
most common of common men the most uncommon of freedoms. When
ordinary hands are free to own this extraordinary, symbolic tool standing
for the full measure of human dignity and liberty, that’s as good as it
gets. It doesn’t matter whether its purpose is to defend our shores or your
front door; whether the gun is a rite of passage for a young man or a tool

117. Tanya K. Metaksa, Self Defense: A Primary Civil Right, in GUNS IN AMERICA: A READER

(Jan E. Dizard et al. eds., 1999) at 194, 195.

118. Charlton Heston, The Second Amendment, America’s First Freedom, in GUNS IN AMERICA:

A READER (Jan E. Dizard et al. eds., 1999) at 199, 203; see also DAVID WILLIAMS, THE MYTHIC

MEANINGS OF THE SECOND AMENDMENT 188-89 (2003) (noting the slippage between figurative

rhetoric of war and the very real exhortation to maintain a very real arsenal of firearms in anticipation

of a conflict that, in the minds of his audience, could turn out to be very real as well).

119. Heston, supra note 118, at 203-204.

120. Id.



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of survival for a young woman; whether it brings meat for the table or
trophies for the shelf; without respect to age, or gender, or race, or class,
the Second Amendment right to keep and bear arms connects us
all—with all that is right—with that sacred document: the Bill of
Rights.121

Here we see the egalitarian (and, perhaps, populist) logic of the recognitional
stakes of fundamental rights, which appeal to all citizens in virtue of their shared
status as democratic equals. And thus even the “common” and “ordinary” citizen
becomes elevated in that status, in virtue of possessing the precious right (and
gun) in question. The logic of equality presses even further122—embracing the
protected categories of the antidiscrimination regime and empowering women
against sexual domination, juxtaposed against the patriarchal passage of a rifle
from father to son. But what makes the right truly fundamental, promoting our
mutual recognition and our self-respect, is its grounding in the Constitution. 

One noteworthy feature of the three examples I have just provided is that they
are not passages from District of Columbia v. Heller or McDonald v. City of
Chicago,123 the gun rights movement’s triumphant successes in driving
constitutional recognition of a fundamental and individual Second Amendment
right. Instead, they are statements of principle from activists, scholars, and
lawyers at the forefront of that struggle. David Cole masterfully analogizes the
gun rights’ movement’s success to the campaign for marriage equality, and he
carefully documents how the NRA has successfully endeavored “to build a sense
of community and identity among its members and supporters.”124 Ultimately, as
Cole observes, “the vitality of a constitutional right turns in significant part on the
extent to which the people, or at least a significant portion of the people, view the
right as fundamental and as warranting their attention, support, and political
action.”125 These social movements stand in conversation with the courts; they are

121. Id.

122. See also Brief of the Black Attorneys of Legal Aid, the Bronx Defenders, Brooklyn

Defender Services, et al. as Amici Curiae in Support of Petitioners, N.Y. State Rifle & Pistol Ass’n

v. Corlet, No. 20-843 (U.S. July 23, 2021), https://www.supremecourt.gov/DocketPDF/20/20-

843/184718/20210723101034102_20-843%20Amici%20Brief%20revised%20cover.pdf

[https://perma.cc/DH5P-VKA9] (arguing that New York's restrictive gun laws disproportionately

burden indigent defendants and people of color, that its gun licensing regime is discriminatory, and

that this set of policies violates the Second Amendment); GREENE, supra note 74 at 20-21 (Greene

makes the noteworthy observation of the history of racial injustice and discrimination against free

Black citizens’ ability to keep and bear arms and argues that on the other side of the ledger in this

debate is “a right—to be substantially free of private violence”). 

123. District of Columbia v. Heller, 554 U.S. 570 (2008) (recognizing an individual right of self-

defense); McDonald v. City of Chicago, 561 U.S. 742, 778 (2010) (incorporating that right into the

Due Process Clause as “fundamental”).

124. DAVID COLE, ENGINES OF LIBERTY: THE POWER OF CITIZEN ACTIVISTS TO MAKE

CONSTITUTIONAL LAW 145 (2016). 

125. Id. at 147-48.



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neither fully upstream now downstream of judicial decisions. But it is clear that,
in large part, the recognitional stakes of a right—its impact on citizens’ self-
understanding and self-respect—determine its status as fundamental by
motivating citizens to engage in constitutional politics and constitutional
interpretation.

I doubt at this point that any reader would fully sign on to the substantive
claims of all (perhaps any?) of the examples I have provided regarding the
recognitional stakes of First and Second Amendment Rights. But that is not their
purpose, and the fact of disagreement about rights cuts more in favor of a
conception of fundamental rights based in recognition and respect than it serves
to undermine it. The fact that interpreters of varying ideological commitments (so
long as they are within the liberal tradition, broadly construed)126 can vest some
individualized conception of the institutional bases of their respect within at least
some elements of a scheme of fundamental rights is significant. Even more
significant is that disagreement about the content of these different rights as
sources of respect shares several common premises—such as the appeal to
individual persons as free moral agents and to their status as democratic equals.
Where these arguments differ, they are arguing about different interpretive
conceptions of the same thing: the proper understanding of what we have called
the constitutional bases of respect—what fundamental rights promote. 

The same reasoning applies to the other fundamental rights protected by the
Constitution—including unenumerated rights that find shelter in the Ninth
Amendment’s declaration that such rights should not be “disparaged” and are
“retained by the people.”127 One wrinkle, however, is that with these rights there
is a significant dispute about the proper level of abstraction to apply to a
particular tradition. And this dispute is pivotal. Heather Gerken observes that “the
level of generality at which the Court speaks will usually determine who wins.”128

The difficulty is in negotiating these different levels of abstraction and
particularity without inducing vertigo. As Gerken notes:

Anyone who has thought about the problem of statutory construction or
constitutional interpretation knows how difficult it is to move from
broad, abstract principles to a decision in a specific case. That is why I
am always a bit flummoxed when I read, say, Ronald Dworkin on
campaign finance. At one moment he is writing under the grand heading
‘What is Democracy?’ A few pages later, he is speaking authoritatively
on the constitutionality of contribution limits, the fairness doctrine, and

126. See, e.g., Jeremy Waldron, Theoretical Foundations of Liberalism, 37 PHIL. Q. 147, 149

(1987) (“Liberals demand that the social order should in principle be capable of explaining itself at

the tribunal of each person's understanding.”).

127. U.S. CONST. amend. IX.

128. Heather Gerken, Larry and Lawrence, 42 TULSA L. REV. 843, 845 (2007); see also id. at

848 (“If the right is the right to sodomize, Lawrence will lose. If the right is the right to form a

‘personal bond,’ Lawrence will win.”) (discussing Lawrence v. Texas, 539 U.S. 558 (2003).



356 INDIANA LAW REVIEW [Vol. 55:319

must-carry rules. In reading through such transitions, I get the same
queasy feeling that I experience when a plane drops altitude too
quickly.129

But we can imagine—and I want to defend a theory of—a middle path between
the abstract philosophy and rigid specificity, carved by citizens interpreting their
fundamental law, filling in the contours of their fundamental rights as interpreted
and applied with an eye to their recognitional stakes. This is neither the hard-
bound traditionalism of Michael H. v. Gerald D., 491 U.S. 110, 127 n.6 (1989)
(“We refer to the most specific level at which a relevant tradition protecting, or
denying protection to, the asserted right can be identified.”), nor the freewheeling
philosophical approach of Ronald Dworkin and James Fleming, who tend to treat
history and tradition as mere tie-breakers or preliminaries before getting to the
more important (i.e., normative) questions in play.130 

Instead, the idea—following the antecedent of fundamental law belonging to
the citizens it governs—is to treat custom, tradition, and even history itself as
objects of critical examination and constructive interpretation.131 Under this
theoretical frame, the interpreter has better reasons to deploy higher levels of
abstraction in constitutional interpretation—because it would promote the
constitutional bases of respect and the recognitional stakes of fundamental rights.
But, unlike the pure philosophical approach, this moral inquiry remains grounded
in the shared constitutional materials of custom, tradition, and history. By treating
these materials as objects of constructive interpretation,132 my approach to

129. Id. at 845.
130. See James Fleming, Fidelity to Our Imperfect Constitution, 65 FORDHAM L. REV. 1335,

1350 (1997) (“History is, can only be, and should only be a starting point in constitutional

interpretation. It has a threshold role, which is often not dispositive . . . . History usually provides a

foothold for competing interpretations or competing theories. It alone cannot resolve the clash among

[them] . . . . [Instead] we must move beyond the threshold dimension of fit to the dimension of

justification. History rarely has anything useful, much less dispositive, to say at that point. In deciding

which interpretation among competing acceptably fitting interpretations is most faithful to the

Constitution, we must ask further questions: Which interpretation provides the best justification,

which makes our constitutional scheme the best it can be, which does it more credit, or which answers

better to our aspirations as a people?”) (footnotes omitted).

131. Cf. supra text accompanying note 45 (discussing fundamental law as custom mediated by

reason) and note 59 (considering Wilson’s account of common law principles).

132. To constructively interpret an object—whether a precedent, practice, or institution—is to

canvass its features, its characteristics, and the practices that constitute it, identifying the principles

that weave these materials into a coherent whole. This coherent set of principles will also supply a

normative justification for the object as well, one that resonates with its central purposes and

animating values. For a full account of this methodology, see DWORKIN, LAW’S EMPIRE, supra note

11. For a similar illustration, see AARON JAMES, FAIRNESS IN PRACTICE: A SOCIAL CONTRACT FOR

A GLOBAL ECONOMY (2012). As an exercise in pursuing normatively justified coherence, the method

recognizes the possibility of mistakes or deviations from an institution’s core purposes, although

identifying these errors comes at the expense of the institution’s integrity.



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fundamental rights calls on interpretive participants—lawyers, judges, and most
importantly, citizens—to imbue these shared materials with their conceptions of
constitutional justice. In other words, the moral impulse towards recognition and
respect that underlies fundamental rights animates the materials—hence,
“animating abstraction.”133

The best way to understand the idea is through examples and we have already
noted two. First is understanding the individual rights reading of the Second
Amendment as the product of a social movement;134 The other, by comparison,
is the parallel push for marriage equality—evoking Justice Scalia’s question that
helped motivate the relationship between fundamental rights, constitutional time,
and citizen interpretation. We will return to that case after developing the idea of
constitutional time further, at which point the load-bearing concepts to support
the idea of animated abstraction will be in place. For now, I will sketch three
arguments in favor of this approach, to serve as a kind of scaffolding. 

First, the idea of animating abstraction harnesses the creative churn of broad-
scale deliberation, breathing new life into old rights that have atrophied. Gun
rights advocates can propel that right from obscurity to the center of our nation’s
constitutional conversation. Defenders of abortion need not hitch themselves to
the language in Roe v. Wade that reads more like it is protecting the rights of the
doctors providing abortions than it is protecting the rights of the citizens seeking
them.135 They can embrace Justice Ginsburg’s vision of a right that does “not seek

133. Other scholars have, of course, observed the problem of how to properly characterize the

level of generality and abstraction of a right. See, e.g., Gerken, supra note 128, at 845. Others have

raised theoretical defenses of heightened abstraction. Lawrence Tribe and Michael Dorf argue that

automatically defaulting to the alternative of hardboiled traditional specificity is “equally

conclusory,” and, in any case, the inquiry must be a “value-laden approach,” consistent with the

Ninth Amendment. See ON READING THE CONSTITUTION 75, 98, 110-11 (1991). Dworkin and Jack

Balkin argue that the Constitution itself selects a high level of abstraction for open-texture clauses.

See Ronald Dworkin, Comment, in SCALIA, supra note 23; BALKIN, supra note 8. But see Keith

Whittington, Dworkin’s ‘Originalism’: The Role of Intentions in Constitutional Interpretation, 62

REV. POL. 197 (2000) (contending that that the operative question of abstraction is itself a historical

one and answering it in good faith requires delving into the history, rather than rushing full-on into

moral and philosophical argumentation).

134. See COLE, supra note 124. 
135. See Roe v. Wade, 410 U.S. 113, 163 (1973) (“[F]or the period of pregnancy prior to this

‘compelling’ point, the attending physician, in consultation with his patient, is free to determine,

without regulation by the State, that, in his medical judgment, the patient's pregnancy should be

terminated.”). As this Article went to press, the Supreme Court had not yet issued an opinion in

Dobbs v. Jackson Women’s Health Org., No. 19-1392 (U.S. argued Dec. 1, 2021. Politico published

a leaked draft of a possible majority opinion by Justice Alito. See Josh Gerstein & Alexander Ward

Supreme Court Has Voted To Overturn Abortion Rights, Draft Opinion Shows, POLITICO (May 3,

2022), https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473.

The draft opinion overturns Roe and Planned Parenthood of Southeast Pennsylvania v. Casey, 505

U.S. 833 (1992), in their protection of a fundamental right to abortion, concluding that such a right



358 INDIANA LAW REVIEW [Vol. 55:319

to vindicate some generalized notion of privacy” but “rather . . . center[s] on a
woman’s autonomy to determine her life's course, and thus to enjoy equal
citizenship stature,” consonant with the moral drive behind the social movement
for gender equality.136 The same goes for those who embrace the Black Lives
Matter movement and believe that remedying past racial injustice can serve as a
compelling state interest for government action,137 rather than shoe-horning the
egalitarian case for racial justice into a diversity interest that will benefit white
people.138 Fundamental rights protection can also extend outside the judicial
domain and into the legislative139—we should understand the popular refrain,
“Health care is a right!” to mean precisely that. 

Second, animating abstraction for fundamental rights is democratic in
character because it is channeled through fundamental law. This approach to
thinking about fundamental rights invites and responds to broad citizen

is not grounded in American constitutional history and tradition. 

136. Gonzales v. Carhart, 550 U.S. 124, 172 (2007) (Ginsburg, J, dissenting). There are many

problems with the opinion in Dobbs, too many to go into here. But perhaps the most striking feature

of the draft opinion is its cursory discussion of the equality argument for a fundamental right to

reproductive autonomy, briefly applying a cramped analysis of outdated equal protection precedents.

See op. at 10 (arguing that “regulation of a medical procedure that only one sex can undergo does not

trigger heightened scrutiny unless the regulation is a ‘mere pretex[t] designed to effect invidious

discrimination’”—which “the ‘goal of preventing abortion’” is not (first quoting Geduldig v. Aiello,

417 U.S. 484, 496 n.20 (1974); and then quoting Bray v. Alexandria Women’s Health Clinic, 506

U.S. 263, 274 (1993))). An amicus brief submitted by constitutional scholars persuasively argues that

Geduldig is no longer good law in light of United States v. Virginia, 518 U.S. 515 (1996), and Nevada

Department of Human Resources v. Hibbs, 538 U.S. 781 (2003). See Brief of Equal Protection

Constitutional Law Scholars Serena Mayeri et al. as Amici Curiae in Support of Respondents, Dobbs

(No. 19-1392). The draft opinion also fails to contemplate how equality and liberty arguments

reinforce one another. Furthermore, the draft opinion’s highly particularized understanding of history

and tradition finds its roots in an era in which women laked full and equal citizenship. This Section

provides a general normative and interpretive argument in favor of a broader, more inclusive, and

more abstract understanding of history and tradition. If the Court does overturns Roe and Casey,

citizens can and should lay the groundwork for a more robust and egalitarian foundation for the

fundamental right, through activism, dialogue, and contestation.

137. Cf. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 499 (1989) (“While there is no

doubt that the sorry history of both private and public discrimination in this country has contributed

to a lack of opportunities for black entrepreneurs, this observation, standing alone, cannot justify a

rigid racial quota in the awarding of public contracts in Richmond, Virginia.”).

138. See Grutter v. Bollinger, 539 U.S. 306 (2003). The more promising interest to cite that

benefits all of us is the interest of citizens in living in a just society.

139. See CASS SUNSTEIN, THE SECOND BILL OF RIGHTS: FDR’S UNFINISHED REVOLUTION AND

WHY WE NEED IT MORE THAN EVER 115-19, 153-56, 165-71 (2004) (discussing New Deal

legislation as “constitutive commitments” carrying constitutional status); MARK TUSHNET, WEAK

COURTS, STRONG RIGHTS: JUDICIAL REVIEW AND SOCIAL WELFARE RIGHTS IN COMPARATIVE

CONSTITUTIONAL LAW (2008) (suggesting that positive rights such as a right to health care is best

vindicated through legislation).



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interpretation, as members of social movements and also through individual roles.
Tradition, custom, and history are not just objects for judges and experts to
pontificate on; they are also fit objects for citizens at large to interpret and
apply—as we will see in the disagreement over Obergefell v. Hodges.140

Finally, there is a distinctive moral value in citizens’ undertaking constructive
interpretation of these underlying materials—even if they do turn out to reveal
substantial historical injustice—because there is only one direction to take:
bending the arc of the moral universe towards constitutional justice. To fully
understand this notion, we need to develop an account of constitutional time, in
Part III.

C. Two Objections and a Way Forward

But first I should acknowledge two objections that have been ominously
forming like storm clouds in the distance. First is a problem with understanding
fundamental law (and thus fundamental rights, on the account I have put forward)
as “citizens’ common reason.” This idea, even if it is well-grounded in
constitutional history, remains somewhat gauzy. And it encounters a dilemma:
does this idea depend on an empirical assessment of the actual set of values held
by citizens at a given moment of time? How much agreement does this
“commonality” require, and for how long a time? If the demand is for sustained
consensus at a concrete level of particularity, then it is worrisome in light of
pitched, reasonable disagreement about all the rights we just considered, just as
token examples. But if instead we suppose that this commonality obtains only at
a high level of abstraction, can we really say that principles of fundamental law
as citizens’ common reason possesses any meaningful normative bite? 

A second problem is a worry about recognition and the constitutional bases
of respect. Even if individualized citizen interpretation might promote the
constitutional bases of respect in a set of nearly just institutions (as with Rawls’s
discussion of civil disobedience as part of non-ideal theory),141 isn’t that a far cry
from our own society, with its more severe departures from what justice requires?
After all, didn’t most of the examples illustrating the constitutional bases of
respect derives from examples of injustice and its effects? In particular, if we
acknowledge a legacy of discrimination against subordinated groups, how can we
then expect those citizens to reconcile their self-respect with our constitutional
essentials?142

My strategy is to confront these two theoretical puzzles in a way that might
at first seem counter-intuitive. First, I will construct two parallel and
corresponding puzzles that come into view when we observe the connection

140. See discussion infra Section IV.C.

141. See RAWLS, supra note 67, at 335-43. 

142. I partly addressed this sort of concern with my discussion of “emancipatory protestantism”

in citizens’ constitutional interpretation, with Frederick Douglass and Judge Bruce Wright as

examples in McNamee, supra note 33, at 35-58. But I take a different approach here.



360 INDIANA LAW REVIEW [Vol. 55:319

between fundamental law and constitutional time. One puzzle deals with the
constitutional past (and, not coincidentally, it emerges from the historical
traditions of fundamental law). It is essentially a paradox of unalterability: how
can the fundamental law, reaching back to time immemorial, remain unchanged
even as it continues to evolve through application across the years? The
contradiction seems transparent and unshakeable. Another puzzle pertains to the
constitutional future: the Panglossian belief that the arc of the moral universe
bends towards justice. Why should we think that this is so—and even if it
happened to be the case, what could possibly be the cause? It is not easy to
explain how moral facts could serve as an independent cause of some other non-
moral fact. And even if we can answer that question, an even more puzzling
problem emerges when we consider the claim that the arc of the Constitution,
within the moral universe, would bend towards justice. 

Next, I will attempt to provide a plausible resolution to each of these four
puzzles by developing a relational conception of constitutional time. I will
advance this conception, once again, by defending the following two interwoven
propositions: first, that claims of fundamental law can be understood as
arguments about constitutional time; and second, that arguments about
constitutional time are essentially moral claims that relate the constitutional
present to its past and future, as an enduring project that can be justified to those
who take part in it. My strategy is to suggest that although each puzzle is
vulnerable to skepticism when taken in isolation, the significant normative costs
of that skepticism become apparent when we take them all together. The idea of
citizens’ common reason leaves open the possibility of grounded and constructive
disagreements about political morality. The otherwise puzzling notion of
“unalterable” and “immemorial” fundamental law becomes clear when we
understand claims invoking it as dynamic, presentist, and normative
arguments—laying those moral stakes bare. The hope that the constitutional bases
of respect might be secured even against the background of a persistent legacy of
injustice means that the victims of that injustice need not resign themselves to
perpetual alienation and despair. And if the arc of the moral universe does bend
towards justice, then we can take seriously that legacy of past injustice even as
we look towards the possibility of a redemptive future. If I can show that a
relational conception of constitutional time plausibly addresses these puzzles,
then we need not abandon these normatively valuable commitments for a
constitutional democracy. 

IV. FUNDAMENTAL LAW AND CONSTITUTIONAL TIME

We now turn to a proper account of constitutional time and how it related to
these ideas of fundamental law and fundamental rights. 

A. Unpacking the Puzzles and Going All-In

From this distillation of fundamental law’s essentially deliberative character
and the recognitional stakes of constitutional citizenship animating fundamental
rights through abstraction, we can make two further observations. First, it appears
that the theory increasingly depends on a notion of constitutional time, which I



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have only developed schematically thus far.
Second, while we have made some progress in delineating fundamental law

from other closely-related normative sources (such as the constitutional text,
long-standing custom, and the requirements of justice), significant conceptual
puzzles linger. This is especially true for the content of “citizens’ common
reason” and the dismal prospects for “constitutional bases of respect” in the face
of severe injustice. Let’s lay those two puzzles out more thoroughly:

P1: The “Common Reason” Dilemma. We have gained some traction
by spelling out the idea of fundamental law as principles that are
accessible to citizens’ common reason. But what does it mean, exactly,
for an interpretive argument to offer justification according to this
distinctive normative source? Is “citizens’ common reason” discernable
as an empirical matter, an accretion of the particular beliefs held by
(some critical threshold of?) actual citizens? For how long a period of
time? On the one hand, it is difficult to imagine empirically-discernable
agreement on the sorts of questions of political morality that pervade our
constitutional politics. But if instead we opt for the other horn of the
dilemma and prescind from the set of concrete shared beliefs that voters
hold at any particular point in time, then the only sort of agreement that
might constitute “citizens’ common reason” would have to occur at a
very high level of abstraction. And it is far from clear whether principles
of fundamental law would, in that case, make any moral difference.

Additionally, recall:

P2: Severe Injustice and Constitutional Disrespect. We also still lack
a completely satisfactory explanation for how severe injustices, such as
our history of structural racism, are still compatible with the
constitutional bases of respect. By channeling protest against injustice
into a constitutional register, this may even risk entrenching the
constitutional bases of disrespect, further undermining the equal
citizenship of members of structurally disadvantaged groups.

The conjoined ideas of constitutional justice and constitutional time will prove
fruitful in addressing these objections. In this Part, I aim to further develop these
ideas by advancing a distinctive conception of constitutional time. On this
conception, constitutional time is not like the “block universe” of modern
physics, the summation of individual time slices that capture each event in four-
dimensional space-time. Instead, it is relational and presentist, in that arguments
of constitutional time relate the constitutional present of a given moment to its
past and future. This presentist relationship adopts a particular moral
register—that of constitutional justice, reflecting citizens’ core interests in the
constitutional bases of respect and their responsibility for participating in
interpretive deliberation. 

My approach here is to adopt a sort of “all-in” strategy. I aim to explain not
only the above two puzzles about fundamental law, but also two other puzzles
about the notion of constitutional time itself. Taken in isolation, each of these



362 INDIANA LAW REVIEW [Vol. 55:319

puzzles raises serious problems—but by addressing them all together with the
same revised conception of constitutional time, we can thereby rescue the
normative values of a constitutional democracy that would otherwise fall prey to
skepticism. We can now lay out these four puzzles, arrayed in the Table below:

Fundamental Law P1: “Common Reason” Dilemma P2: Severe Injustice and

Constitutional Disrespect

Constitutional Time P3: Pocock’s Paradox P4: Constitutional Arc of the

Moral Universe

Table 1: Parallel Puzzles for Fundamental Law and Constitutional Time (by Author).

Corresponding to the first puzzle, about the possibility and specification of
citizens’ common reason, is a puzzle about constitutional time, looking from the
present to the constitutional past:

P3: Pocock’s Paradox. Call this puzzle “Pocock’s Paradox,” after the
historian who first observed its prevalence in Whiggish constitutional
thought. The Paradox begins with the observation that “[i]f the idea that
law is custom implies anything, it is that law is in constant change and
adaptation, altered to meet each new experience in the life of the people.”
But although this dynamic and evolutionary pattern for customary
principles should be obvious, Pocock observes that, at any given point,
the actual argumentative practice of customary law paints a far different
picture, of the constitution as static and “immemorial”: 

Yet the fact is that common lawyers, holding out that law is custom,
came to believe that the common law, and with it the constitution,
had always been exactly what they are now, that they were
immemorial: not merely that they were very old, or that they were
the work of some remote and mythical legislators, but that they were
immemorial in the precise legal sense of dating from time beyond
memory—beyond, in this case, the earliest historical record that
could be found. This is the doctrine or myth of the ancient
constitution.143

What sense does this make? How can the constitution simultaneously be
ever-changing but remain unalterably fixed in historical memory?

And yet! These claims of Whiggish history are replete throughout the legal
discourse of the founding era, as we have seen—and they do not stop there. Are
the proponents of these arguments so confused about how constitutional time
operates? 

Next, corresponding to the puzzle about severe historical injustice
undermining the constitutional bases of respect, is another puzzle about
constitutional time—in particular, about the constitutional future as it relates to

143. POCOCK, supra note 38, at 36-37.



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the past. Joshua Cohen provides a limited defense of what he calls “ethical
explanations”: claims like Dr. King’s famous aphorism that “the arc of the moral
universe is long, but it bends towards justice.”144 Against considerable
skepticism—the worry that “[s]uch explanations seem both too relaxed about
distinctions between fact and value and too Panglossian: Does right really make
might?”—Cohen mounts an impressive and careful defense of one ethical
explanation in particular. Namely, he defends the view that the wrongness of
antebellum chattel slavery causally contributed to its ultimate demise.1 4 5 The
argument proceeds from the recognition that slaves possessed certain “legitimate
interests,” in virtue of sharing the same “properties” as other persons (such as the
capacity to deliberate about how their lives go well), which are substantially
burdened by their enslavement; while the countervailing interest in owning slaves
are, necessarily, not so similarly shared.146 From these observations, Cohen
accounts for this wrongness of slavery according to a social contract conception
of justice that seeks fair terms of cooperation that can be justified in light of those
shared fundamental interests—or, said differently, fair terms that no one
possessing those fundamental interests would reasonably reject. On this picture,
the justice (or injustice) of a social system causally contributes to its viability (or
lack thereof). “What is at stake,” Cohen observes, “is not the appropriate moral
attitude toward slavery or philosophical outlook on morality, but the appropriate
attitude toward the social world. How accommodating is the social world to
injustice? Is it reasonable, from a moral point of view, to hate the world?”147 I am
largely persuaded by Cohen’s cautious and limited defense—my interest is in
probing a closely-related and (seemingly) much less plausible notion. And thus: 

P4: The Constitutional Arc of the Moral Universe. This greater puzzle
is the idea that constitutional interpretation bends towards justice across
time in a similar way. Somehow, the injustice of an institutional practice
contributes to an interpretive conclusion that the practice is and has been
unconstitutional. This is not a break from the fundamental law of the
past, which sustained the unjust practice in question; instead, it is a new
understanding that such readings from the past are and have been
mistaken. But if the constitutional arc of the moral universe bends
towards justice—so that, as we continue outwards across constitutional
time, we come to see that the unjust institution was never really
constitutional—then has the constitutional arc really bent at all? Even if
we can grasp (and sufficiently answer) that somewhat mind-numbing
question, it is far from obvious what could have been the cause, or
whether we can avail ourselves of the kind of ethical explanation that
Cohen offers. After all, Cohen’s causal mechanism is that the forces of

144. See Joshua Cohen, The Arc of the Moral Universe, 28 PHIL. & PUB. AFF. 91, 93 (1997). 

145. See generally id.

146. Id. at 92.

147. Id. at 96.



364 INDIANA LAW REVIEW [Vol. 55:319

social power sustaining an unjust institution falter, or at least become
weaker, because (at least in part) their very injustice undermines their
viability. This story makes sense of constitutional rupture, rather than
continuity and coherence, as moral progress. If a constitution at time A
promotes (or at least countenances) a set of unjust institutions S, then it
must be the case that the summation of all the various causal vectors in
play at time A, taking into account all the relevant facts—including the
injustice of S—is ultimately compatible with the existence and
constitutionality of S. The fact of S speaks for itself. It follows that the
mere fact of S’s injustice cannot by itself explain why S is
unconstitutional at some later time B. Again, the alternative explanation
is not a story of constitutional renewal and continuity; in the moral
universe, the arc of a constitution does not bend in response to injustice
but breaks. Cohen is right, I believe, to suggest that it is unreasonable
from a moral point of view to hate the world. But it is much easier to see
why one might hate a constitution.

And yet! Resonant voices have appealed to our better angels and argued
powerfully for a constitutional trajectory that does bend towards justice. These
range from James Wilson and Abraham Lincoln’s arguments about the ultimate
demise of slavery,148 to Frederick Douglass’s striking insistence that the
antebellum Constitution was an antislavery document despite the forces of white
supremacy and Slave Power propping up the institution.149 These arguments were
vindicated—and other claims might also be. Perhaps the constitutional arc of the
moral universe does bends towards justice and redemption.150 

There are elements of all four of these puzzles underlying Scalia’s question
to Olson: when did marriage equality become constitutionally required? We now
turn to addressing these four puzzles—and, ultimately, Scalia’s question—by
developing a plausible account of constitutional time, whereby claims of
fundamental law can be understood, in part, as arguments about constitutional
time, as I describe it;151 and arguments about constitutional time are relational,
presentist, and essentially moral arguments of a kind: they relate the
constitutional present to moralized notions of the constitutional past and future,
oriented at constitutional justice over time. 

It might seem surprising to suggest that claims of fundamental law are all
essentially temporal in this way. But consider the basic principle that “no one
ought to be a judge in his own cause.” Lord Coke famously invoked this principle
in Dr. Bonham’s Case.152 A century and a half later in 1761, colonial lawyer
James Otis cited Lord Coke’s example for the proposition that “an Act of

148. 1 THE COLLECTED WORKS OF JAMES WILSON 209-10 (Kermit Hall & Mark Hall, eds.

2007); Abraham Lincoln, Speech in Springfield, Illinois (“House Divided Speech”) (June 16, 1858).

149. See McNamee, supra note 33, at 36-46, for a discussion of this last example and others.

150. See generally JACK BALKIN, CONSTITUTIONAL REDEMPTION (2010).

151. See supra discussion and sources accompanying note 20.

152. 77 Eng. Rep. 646 (C.P. 1610); see GOUGH, supra note 37. 



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Parliament against common justice or common right is void,” condemning the
Writs of Assistance as “against the fundamental principles of law” ensuring that
“a man who is quiet is as secure in his house as a prince in his castle.”153 Even
there, Lord Coke invokes the principle as ancient and timeless—in a framing that
blends the normative and the historical, as according with “common right and
reason.”154 Otis’s arguments stretch in precisely the same way, as do those of
others who would continue this chain of argument. Claims about “immemorial”
constitutional principles are not ultimately arguments about historical fact.
Instead, they represent a single thread in a more complex argumentative weave
of legality and morality, custom and reason. As historian John Philip Reid writes, 

It might be more descriptive, though not quite accurate, to say that we are
dealing with a legal fiction. Rights were immemorial, those that exist
today have existed from a time before there were kings to grant them,
and the only evidence necessary to prove immemoriality was that they
exist today. Yet immemoriality was not an insignificant allegation: it was
the best, the strongest proof of constitutionality.155

And, importantly, arguments of political morality offer evidence to vindicate both
constitutionality and immemoriality. Reid offers an example from a publication
by Robert Walpole: “Whatever are the Rights of Men in this Age,” the
pamphleteer thundered, “were their rights in every Age; for, Rights are
independent of Power.”156 We see a similar fuzziness between custom and reason
across constitutional time in Justice Harlan’s influential dissent in Poe v. Ullman,
arguing for a fundamental right to marital contraception. Harlan tells us that the
Fourteenth Amendment’s protection of certain unenumerated fundamental rights
reflects a

balance which our Nation, built upon postulates of respect for the liberty
of the individual, has struck between that liberty and the demands of
organized society. If the supplying of content to this constitutional
concept has of necessity been a rational process, it certainly has not been
one where judges have felt free to roam where unguided speculation
might take them. The balance of which I speak is the balance struck by
this country, having regard to what history teaches are the traditions from
which it developed as well as the traditions from which it broke. That
tradition is a living thing. A decision of this Court which radically
departs from it could not long survive, while a decision which builds on
what has survived is likely to be sound. No formula could serve as a

153. GOUGH, supra note 37, at 192; see also KRAMER, supra note 16, at 21-23 (discussing John

Adams’ contemporaneous notes of Otis’s argument and their application to revolutionary-era

constitutional debate).

154. 77 Eng. Rep. 646, 652 (C.P. 1610).

155. JOHN PHILLIP REID, CONSTITUTIONAL HISTORY OF THE AMERICAN REVOLUTION 69 (1995).

156. Id.



366 INDIANA LAW REVIEW [Vol. 55:319

substitute, in this area, for judgment and restraint.157

Harlan concludes—troublingly, in my view—that 

Adultery, homosexuality, and the like are sexual intimacies which the
State forbids altogether, but the intimacy of husband and wife is
necessarily an essential and accepted feature of the institution of
marriage, an institution which the State not only must allow, but which,
always and in every age, it has fostered and protected. It is one thing
when the State exerts its power either to forbid extramarital sexuality
altogether, or to say who may marry, but it is quite another when, having
acknowledged a marriage and the intimacies inherent in it, it undertakes
to regulate by means of the criminal law the details of that intimacy.158

In this argument, we can see the admixture of custom, tradition, and reason that
should now be familiar from our discussion of fundamental law. We can also see
the strands of a more expansive and liberal conception of fundamental
rights—that “this tradition is a living thing,”159 subject to “rational” reflection,
leads directly to unmarried contraception,1 6 0 abortion,1 6 1 and the
unconstitutionality of sodomy laws162—as well as more conservative conceptions
of custom and tradition that define fundamental rights more concretely and
narrowly.163 My relational and moral conception of constitutional time sheds light
on these interpretive disagreements—between competing normative claims of
constitutional justice, about how we in the present should relate to our
constitutional past and future.

It is worth hesitating for a moment on Reid’s suggestion that the
immemoriality of fundamental law across constitutional time can be helpfully (if
“not quite accurate[ly]”)164 described as a legal fiction. On this picture, arguments
about constitutional time are not merely reports of historical facts about the past
(although they must, of course, take those facts into account) or predictions about
the future. Instead, they are normative arguments that relate the constitutional past
and future to moral considerations about the present. In common discourse, legal
fictions have received somewhat of a bad rap as a kind of judicial

157. Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting). It is not trivial that Harlan

and his fellow justices are grappling with the legacy of Lochner v. New York, 198 U.S. 45 (1905), and

the role of fundamental rights in the New Deal settlement. 
158. Id. at 553.

159. Id. at 542.

160. See Eisenstadt v. Baird, 405 U.S. 438 (1972).

161. See Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood of Se. Pa. v. Casey, 505 U.S.

833 (1992); supra notes 135-36.

162. See Lawrence v. Texas, 539 U.S. 558 (2003).

163. E.g., Washington v. Glucksberg, 521 U.S. 702 (1997) (finding no fundamental right to

assisted suicide); Michael H. v. Gerald D., 491 U.S. 110 (1989) (discussing the importance of the

level of abstraction in identifying the right).

164. REID, supra note 155, at 69. 



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chicanery165—“there go those judges again, always just making things up”—but
there is nothing inherently objectionable about legal fictions, and they may
achieve an even greater sort of verisimilitude so long as two conditions hold.
First, as Lon Fuller observed in his seminal discussion of the concept, legal
fictions must be transparent—they can only be harmful to the extent that we
come to believe them as true, and “it is precisely those false statements that are
realized as being false that have utility.”166 Second, and relatedly, legal fictions
must serve the underlying legal values in question. The doctrine of attractive
nuisance, for example, treats trespassing children as invited guests with respect
to dangerous playground equipment or similar hazards.1 6 7 We all know—judges,
juries, landowners, probably even the children themselves—that they are not
invitees. But the purposes of tort law are better served with the fiction than
without it. 

If we imagine claims of immemoriality as legal fictions, the central virtue of
my account of fundamental law and constitutional time becomes clear: that it lays
the fiction bare while articulating the value that it promotes. This is the distinctive
value of constitutional justice. We have already observed that principles of
fundamental law are orientational, in that they aim to orient the set of
constitutional materials towards constitutional justice, and that this trajectory
spans across constitutional time. The relational conception of constitutional time
that I have put forward places this temporal aspect of constitutional justice front
and center. 

The heroes of this story are not idealized judges named for ancient demigods
or legendary lawgivers of the sort that adorn the chamber of the House of
Representatives.168 We, the citizens of the democratic community, must fill that
role. This is true for citizens who belong to groups who have suffered from those
longstanding injustices. The work they do to forge that connection between the
constitutional past and constitutional future, in part by making claims of justice
in the present, charts a course between idle hope and quietist resignation. And
crucially, it is also true for everyone else in the democratic community, we who
share in those same interpretive endeavors and who bear responsibility for
injustices committed in our name.169 We, too, can interrogate the past
unflinchingly without letting slip the constitutional bases of our own self-respect.
There is no need to avert our gaze or avoid this confrontation, to bluster, or
obfuscate, or ignore. And this is because we can also be responsible, together, for
that hopeful possibility of constitutional justice and redemption—for the

165. Cf. Frederick Schauer, Legal Fictions Revisited, in LEGAL FICTIONS IN THEORY AND

PRACTICE (William Twining & Maksymilian Del Mar eds., 2015).

166. LON L. FULLER, LEGAL FICTIONS 9 (1967).

167. See RESTATEMENT (SECOND) OF TORTS § 339 (AM. L. INST. 1965).

168. See ARCHITECT OF THE CAPITOL, ABOUT RELIEF PORTRAIT PLAQUES OF LAWGIVERS (Apr.

29, 2016), https://www.aoc.gov/art/relief-portrait-plaques-lawgivers/about-relief-portrait-plaques-

lawgivers [https://perma.cc/Y93M-5FPR].

169. See ERIC BEERBOHM, IN OUR NAME: THE ETHICS OF DEMOCRACY (2012).



368 INDIANA LAW REVIEW [Vol. 55:319

interpretive labor in integrating that vision of justice and for taking steps in the
present along that trajectory. In so doing, we stand together in a relationship of
full recognition and equal respect with our fellow citizens. 

There are many stories we can—and do—tell about constitutional time. I
have repeatedly evoked the theme of redemption. But originalist accounts of
constitutional interpretation tend to tell stories of decline and renewal—a U-
shaped arc from the past to the future. The normative valence can be conservative
or libertarian criticism of the New Deal and Great Society,170 or it can be liberal
lamentation about our fall from the founding’s republicanism and the modern
descent into corruption.171 We may not always notice, but these sorts of claims are
arguments about constitutional justice and constitutional time, and we would do
well to lay their normative stakes bare. 

In this way, the guiding aim of constitutional justice promotes the
constitutional bases of respect—in that it secures some institutional foundation
for individuals’ self-worth across constitutional time, even in the face of extant
injustice. It also promotes the value of citizens’ deliberative participation in an
enduring project of constitutional interpretation—in that this hope for
constitutional redemption in the face of historical injustice supplies an answer for
why citizens should continue to perform that work. The sentiment is perhaps best
explained with a stanza from poet James Russell Lowell that, Cohen reports, Dr.
King would often invoke alongside his aphorism about the arc of the moral
universe:

Truth forever on the scaffold, 
Wrong forever on the throne; 
Yet that scaffold sways the future, 
And behind the dim unknown 
Standeth God within the shadow 
Keeping watch above His own.172

In our constitutional democracy, the force that stands behind the scaffold—the
object of our constitutional faith—is not a benevolent and all-seeing deity. It is
us. Our faith must lie in our own democratic community of citizens—in the
aspiration that we will achieve constitutional justice over constitutional time,
across the arc of the moral universe. 

Having set out a plausible relational conception of constitutional time, we can
now consider how it promises to resolve the puzzles we have considered—thus
rescuing values of constitutional democracy from skepticism. The resolutions for
P4 (The Constitutional Arc of the Moral Universe) and P3 (Pocock’s Paradox) are
fairly straightforward. The idea of constitutional time is a transparent fiction.
Arguments about constitutional time are, at their core, not claims about
prediction, causation, or historical fact—instead, we should understand them as

170. See, e.g., BARNETT, supra note 73; RICHARD EPSTEIN, HOW THE PROGRESSIVES REWROTE

THE CONSTITUTION (2006).

171. Lawrence Lessig, What an Originalist Would Understand “Corruption” to Mean, 102

CALIF. L. REV. 1 (2014).

172. Cohen, supra note 144, at 133.



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moral claims about constitutional justice, relating the present to moralized notions
of the constitutional past and future.

This normative task (perhaps surprisingly) is the role of two forms of
constitutional “history” that have long been disparaged. First is “law office
history,”173 a presentist form of advocacy that selectively marshals historical facts
as authority in favor of a particular conclusion (rather than adhering to the
professional disciplinary norms for how historians approach evidence). Second
is the dread “Whig interpretation of history.” Herbert Butterfield, the historian
who coined the term, argued against certain seemingly teleological aspects of
what he called historical “abridgement,” identifying actors in the past as heroes
or villains with respect to our own modern notions. Butterfield claimed, for
example, that 

it matters very much whether we take the Protestants of the 16th century
as men who were fighting to bring about our modern world, while the
Catholics were struggling to keep the medieval, or whether we take the
whole present as the child of the whole past and see rather the modern
world emerging from the clash of both Catholic and Protestant.174

But, in response, historian William Cronan is correct to observe that “without
abridgement, there is no history,” and that “we” historians (or, indeed, others who
happen to lack doctorates in history) “cannot evade the storytelling task of
distilling history’s meanings.”175 So long as we acknowledge the presentism in
these techniques, then we can see them clearly for what they are: argumentative
resources for claims about constitutional time, properly understood. As we have
observed, these are essentially moral claims, and they are properly at the disposal
not just of judges, lawyers, and historians—but also of democratic citizens
attempting to trace the arc of constitutional justice. My account of fundamental
law and constitutional time renders these moral claims transparent, subject to
ongoing deliberation and contestation. 

Similarly, we can resolve P2 (Severe Injustice and Constitutional Disrespect)
by drawing on the above insights and the idea of constitutional justice. As we
have developed this distinctive normative source, we have seen how it can
reconcile citizens to the constitutional bases of respect even in the face of severe
injustice. It does so through the presentism of constitutional time—making it

173. See Alfred H. Kelly, Clio and the Court: An Illicit Love Affair, SUP. CT. REV. 119 (1965)

(coining the phrase); John P. Reid, Law and History, 27 LOY. L.A. L. REV. 193 (1993); see also

Jonathan Gienapp, Knowing How vs. Knowing That: Navigating the Past, PROCESS: A BLOG FOR AM.

HIST. (Apr. 4, 2017), www.processhistory.org/gienapp-knowing-how/ [https://perma.cc/GG82-

7A22]; Balkin, Lawyers and Historians, supra note 20.

174. HERBERT BUTTERFIELD, THE WHIG INTERPRETATION OF HISTORY (1931).

175. William Cronan, Two Cheers for the Whig Interpretation of History, PERSP. ON HIST.,

(Sept. 1, 2012) https://www.historians.org/publications-and-directories/perspectives-on-history/

september-2012/two-cheers-for-the-whig-interpretation-of-history [https://perma.cc/8MXN-ZXP].



370 INDIANA LAW REVIEW [Vol. 55:319

possible for citizens to interrogate historical injustice with clear-eyed recognition
of the legacy of those wrongs, even as they envision a hopeful possibility of
redemption and justice at the other end of our constitutional arc. We also
observed, however, that there could be many conceptions of constitutional justice
or the trajectory of constitutional time, including conceptions that compete or are
even exclusive with one another. Even if I am right about unveiling the
controversial questions of political morality that underlie these disagreements,
don’t the disagreements themselves pose a problem for my theory of fundamental
law?

This objection is just another way of stating our initial puzzle, P1 (The
Common Reason Dilemma). I have said that principles of fundamental law must
be accessible to citizen’s common reason, which must in turn justify our
constitutional order to its citizens. But once again, if so, what is the content of
“citizens’ common reason,” and what difference does it make? Does it reduce to
the empirically determinable and overlapping set of beliefs that actual citizens
have about the Constitution, over some period of time? If so, such agreement
seems unlikely at best—and it is unclear what sort of normative force it might
have, anyway. But if we go down the other horn of the dilemma and suggest that
“citizens’ common reason” achieves commonality only through high levels of
abstraction, then it becomes unclear what sort of difference principles of
fundamental law make—whether they possess any real “bite” or normative force
at all.

Our discussion of constitutional time makes clear in which direction we need
to go in resolving this puzzle. The content of “citizens’ common reason” must be
abstract, on the supposition that constitutional interpretation is an enduring
enterprise, in which citizens take part and which spans across the generations.
Abstraction is necessary because we live and die, because the world changes
radically over large time scales, because we cannot possibly share identical
conceptions across these yawning temporal divides. This is not to say that we
must be radically alienated from the constitutional past or its future. Indeed, I
have argued that this sort of engagement is morally valuable in a constitutional
democracy. A presentist and relational conception of constitutional time makes
this endeavor possible. 

Chief Justice John Marshall made a similar plea for abstraction in
constitutional interpretation in one of the most famous sentences in the
constitutional canon. My account of fundamental law and constitutional law
explains an under-appreciated moral reading of this famous dictum, that “we must
never forget that it is a constitution we are expounding.”176 The reason is that it
is valuable for citizens to participate in constitutional interpretation as an
enduring enterprise. A constitution, in other words, must constitute us as a
people—creating an enduring enterprise of self-government that spans
generations. The participants in this enterprise must be able to apprehend its
meaning, even as they (and Congress, and the courts) continue to argue over how
its general provisions apply in new circumstances. And thus President Franklin

176. McCulloch v. Maryland, 17 U.S. 316, 407 (1819).



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Roosevelt’s pronouncement a century later that the Constitution is “a layman's
document, not a lawyer's contract.”177 

This persistent disagreement about abstract principles is the same problem
that remains for both of our puzzles about fundamental law, P1 and P2. The next
Section will argue that this mere fact of disagreement, by itself, does not pose an
objection to my account of fundamental law. Citizens’ common reason, even
understood abstractly, still has significant normative implications. The key is that
these abstract principles ground and channel our interpretive disagreements so
that they are constructive—thus promoting the core interests of constitutional
citizenship, the constitutional bases of respect and engagement with an enduring
project.

B. Distilling and Addressing the Core Objection

We have resolved the puzzles that beset fundamental law and constitutional
time, further developing the normative values they promote. The thread that
remains is an important problem: the problem of pervasive disagreement over
abstract principles and their application. If we require consensus for citizens’
common reason to have any content, will this agreement occur at such a high
level of abstraction that it carries no real normative force? This Section begins by
answering this objection, which then enables us to answer Scalia’s question from
the scene at the outset of the chapter: when did marriage equality become
constitutionally required?

First, principles of fundamental law as abstract common reason can have
significant normative bite—they can operate, as we said, as law, altering the
profile of agents’ rights and duties—even if they do not give rise to any particular
duty to obey a particular rule. The moral predicate of a claim of fundamental law
is not a pro tanto and defeasible reason to obey the law.178 Instead, the moral
predicate of a claim of fundamental law is a pro tanto reason to engage in
interpretive argument. This finding is morally significant, in that it promotes
important values of a constitutional democracy, such as the constitutional bases
of respect. And, as we have seen, the abstractness of a principle of fundamental
law is helpful to this interpretive endeavor, and it in no way interferes with an
interpreter’s capacity to reason towards a particular application. 

Second, the objection presupposes that, without some mechanism to resolve
disagreements, principles of fundamental law are indeterminate—to say that the
content of fundamental law as citizens’ common reason reduces to the force of
the better argument is to say that it has no force at all. But this rests on a further

177. President Franklin Delano Roosevelt, Constitution Day Address (Sept. 17, 1937), available

at: http://www.fdrlibrary.marist.edu/_resources/images/msf/msf01104 [https://perma.cc/N2MH-

AQDH].

178. See supra discussion and sources accompanying note 66. There might be good reasons to

believe that this would be the proper moral predicate for a rule of ordinary law—I leave that question

an open one.



372 INDIANA LAW REVIEW [Vol. 55:319

assumption, that for citizens’ common reason to have real content, there must be
some external standpoint from which we can evaluate these disagreements and
determine, ultimately, which set of interpretive arguments prevails. But to rely on
this assumption is to commit the same Archimedean fallacy that Ronald Dworkin
relentlessly pursued in his writings.179 There simply is no way to determine the
content of citizens’ common reason without taking up that enterprise and
engaging in the practice of interpreting our fundamental law. And once we adopt
that internal perspective, we see that the mere fact of disagreement is itself no
objection to principles of fundamental law or to citizens engaging them through
interpretive deliberation.180 The key is that abstract principles of fundamental law
effectively ground and channel citizens’ disagreements about political morality.
They promote interpretive deliberation and the exercise of citizens’ interpretive
responsibilities, rather than hindering them.

Third, the idea of constitutional justice implies certain core interests in
constitutional citizenship that, taken together, work to exclude some views from
the domain of citizens’ common reason.181 These core interests of constitutional
citizenship emerge from my constructive interpretation of American
constitutionalism and the practice of citizens engaging in constitutional
interpretation. They include, at least, citizens’ interest in some institutional
recognition of their own self-worth, which is closely related to the idea of the
constitutional bases of respect as we have developed it. These interests also
include citizens’ interest in engaging in constitutional interpretation, in
participating in that enduring enterprise across constitutional time, in carrying out
their deliberative and interpretive responsibilities. 

C. Answering Scalia’s Question

Let’s return to where we started and consider an example of how principles
of fundamental law ground interpretive disagreements about citizens’ common
reason over constitutional time. Recall Justice Scalia’s question: “When did it
become unconstitutional to exclude homosexual couples from marriage? 1791?
1868, when the 14th Amendment was adopted . . . . [H]ow am I supposed to
know how to decide a case, then, if you can’t give me a date when the
Constitution changes?”182 The easy answer that Ted Olson could have given is
that such a ban was never unconstitutional. But this mistaken “never” answer
misunderstands the nature of an interpretive claim of fundamental law, in the
same way that Pocock misunderstands the “myth” of an “ancient” and

179. See Ripstein, supra note 35.

180. Compare, in different context, DWORKIN, LAW’S EMPIRE, supra note 11, at 239 (defending

Law as Integrity with the suggestion that, to the extent that a reader disagrees with one of Judge

Hercules’s interpretive conclusions, she has not refuted integrity but has instead joined its enterprise).

181. Cf. BEITZ, supra note 99, at 107-17 (1989) (discussing “recognition,” “equal treatment,”

and “deliberative responsibility” as “regulative interests of citizenship” that inform his contractualist

account of political equality).

182. See Oral Argument, supra note 26.



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“immemorial” constitution. 
When we talk about the past, present, and future of fundamental law, we offer

constructive arguments, identifying principles that pull these different
temporalities into equilibrium with one another. The real answer to Scalia’s
question is that the constitutional meaning changed, for anyone applying the
Fourteenth Amendment’s guarantees of liberty and equality, when it became clear
that refusing to recognize a marital union because its members were of the same
sex is to deny their equal status as citizens. This determination does not come
with a time stamp; it is the end-product of responsible consideration of a set of
interpretive arguments. And Olson is correct to note that the reason there is no
such time stamp is that this determination is at once cultural and societal, the
result of citizens reasoning about these principles together.183 The constitutional
text stayed the same; it was our collective understanding that caught up,
redeeming its promise and fulfilling its principled potential. The crisp and direct
answer to Scalia’s question (for a judge, at least) is this: 

Before now. If you mean, “When was there some operative text, duly
enacted, that decides the question?” the answer would be: July 9, 1868
(with the Fourteenth Amendment). If you mean, “When did your
interpretation of that text become the law of the land?” the answer would
be: sometime between 2003 and now.184 

This wasn’t because of any one thing that some judge had to say—not
even Justice Kennedy—any more than one grain of sand turns a pile into
a heap. It was, instead, the product of citizens (and officials, too)
deliberating together about what our living traditions mean. Think back
on what Justice Harlan said about contraception—it worked just like
that. You don’t agree with this interpretation. The ghost of Justice
Harlan wouldn’t either. But that doesn’t make it wrong.

Only an argument of political morality, drawn over the arc of constitutional time,
will do that.

Scalia’s rhetorical question commits three related errors of hyper-precision.
First, he supposes that the principal—indeed, the only—interpreters here are
judges in black robes, not citizens at large. Second, he demands a constitutional
time stamp to warrant this interpretive conclusion, as though he is some sort of
auditor glancing at his watch while Olson rifles through a shoebox full of
receipts. And third, the time stamp he demands corresponds to an overly-
particularized right to the recognition of “homosexual . . . marriage[s].” The
response to each of these errors flows from the theory of fundamental law as a set
of deliberative principles. As we have seen, citizens have a vital role to play in
interpreting and applying these principles. As we saw in the previous Part, they

183. See COLE, supra note 124.

184. I.e., after Lawrence v. Texas, 539 U.S. 558 (2003) and, especially, after United States v.

Windsor, 570 U.S. 744 (2013). 



374 INDIANA LAW REVIEW [Vol. 55:319

do so by engaging with the abstract questions of political morality that these
principles invite, as animated by the particulars of a case. And as we will see in
this Part, those abstract principles cut across time, generating coherence, much
the same as they cut across cases.

Consider the development of the arc of gay rights cases over time. In 1986,
the Court declined to recognize a “fundamental right to engage in homosexual
sodomy.”185 Bowers v. Hardwick held that, because of the longstanding tenure of
anti-sodomy laws, there could be no fundamental right—which must be “deeply
rooted in this Nation's history and tradition”18 6—to engage in such conduct. As
with Justice Scalia’s characterization of a right to “homosexual marriage,” this
hyper-particularized description all but dooms the purported claim. That same
year, Justice Anthony Kennedy joined the Court, and ten years later he authored
an opinion striking down a Colorado referendum that sought to nullify local
protections from discrimination on the basis of sexual orientation. Beginning with
this Romer decision, Justice Kennedy laid the groundwork for the Court to
reverse its course and cognize the fundamental rights claims of gay
plaintiffs—sounding in the compound registers of liberty, equality, and
dignity—at a higher level of abstraction.187 The Court explicitly overturned
Bowers in 2003, in Lawrence v. Texas. Justice Kennedy’s opinion once again
raised the level of abstraction in characterizing the right at stake, suggesting that
the “liberty” protected by the Due Process Clause “presumes an autonomy of self
that includes freedom of thought, belief, expression, and certain intimate
conduct.”188 It is this heightened level of abstraction—equating the right to
“intimate conduct” free from state intrusion with basic liberties of self-expression
and association protected by the First Amendment—that drives the reasoning in
the case.189 

In 2013, Justice Kennedy wrote yet another opinion striking down a
discriminatory statute—this time, the federal Defense of Marriage Act, which
barred the government from acknowledging same-sex marriages as a matter of
federal law.190 The Court’s reasoning blended an element of federalism into the
recurrent cocktail of liberty and equality—seizing on states’ sovereign function
to protect and even enhance the rights of their citizens by officially recognizing
the dignity of their intimate relationships. Two years later in Obergefell v.
Hodges, the Court struck down state-level bans on same-sex marriage under the
Fourteenth Amendment.191 Once again, Justice Kennedy’s key move is to deploy
abstraction—characterizing the fundamental right to marriage equality in light of
our traditions and customs as they have evolved over time. “The ancient origins
of marriage confirm its centrality, but it has not stood in isolation from

185. Bowers v. Hardwick, 478 U.S. 186, 191 (1986).

186. Id. at 194. Any claim to the contrary must be “at best, facetious.”

187. Romer v. Evans, 517 U.S. 620 (1996).

188. Lawrence, 539 U.S. at 558.

189. See Gerken, supra note 128.

190. United States v. Windsor, 570 U.S. 744 (2013).

191. 576 U.S. 644 (2015).



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developments in law and society. The history of marriage is one of both
continuity and change.”1 9 2 With the rise of an egalitarian conception of marriage,
such “new insights have strengthened . . . the institution” because “changed
understandings of marriage are characteristic of a Nation where new dimensions
of freedom become apparent to new generations, often through perspectives that
begin in pleas or protests and then are considered in the political sphere and the
judicial process.”193

This same egalitarian and inclusive arc swept over the late twentieth and early
twenty-first century, beginning to erode the institutional markers of homophobia
and gay Americans' second-class status as citizens. Our constitutional principles,
Justice Kennedy suggests, are capable of cognizing that change: 

The generations that wrote and ratified the Bill of Rights and the
Fourteenth Amendment did not presume to know the extent of freedom
in all of its dimensions, and so they entrusted to future generations a
charter protecting the right of all persons to enjoy liberty as we learn its
meaning.194

And as Kennedy argues, the interwoven principles of liberty, equality, and
dignity, as well as an inclusive conception of our shared traditions, all counsel in
favor of recognizing marriage equality. Crucially, this conclusion has been
informed by substantial public deliberation about these basic questions of
principle.195

Justice Kennedy is deploying principles of fundamental law in the same
manner as the American founders and seventeenth-century Whigs we surveyed
earlier—engaging in a “framework for argument” and “custom mediated by
reason.”196 And in Kennedy’s analysis, we can see how principles of fundamental
law generate ongoing interpretive deliberation, cutting across time at a heightened
level of abstraction. Crucially, this interpretive dialogue is not strictly—not even
primarily—a matter for judges in black robes, although they must also sometimes
engage in those questions. When they do so, judges must follow Justice
Kennedy’s example—forthrightly and transparently addressing the value
questions at stake, rather than hiding behind the technical and doctrinal “lawyers’
work” that is their expertise. 

Justice Kennedy’s final opinion in this arc of gay rights decisions came in
Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission,197 a case that
sets the right to marriage equality and its attendant values against the free exercise
rights of those who oppose it on religious grounds. A gay couple filed an
antidiscrimination claim against Jack Phillips, a baker who refused to prepare

192. Id. at 659.

193. Id. at 660.

194. Id. at 664.

195. See id. at 676.

196. See KRAMER, supra note 16, at 14; Sherry supra note 45, at 1129.

197. Masterpiece Cakeshop Ltd. v. Col. C.R. Comm’n, 138 S. Ct. 1719 (2018).



376 INDIANA LAW REVIEW [Vol. 55:319

their wedding cake because of his religious opposition to same-sex marriage. At
Phillips’s hearing, one commissioner remarked: 

Freedom of religion and religion has been used to justify all kinds of
discrimination throughout history, whether it be slavery, whether it be the
holocaust . . . . And to me it is one of the most despicable pieces of
rhetoric that people can use to—to use their religion to hurt others.198

Colorado’s civil rights division also dismissed several other cases where a
customer alleged religious discrimination against bakeries who refused to prepare
cakes expressing opposition to same-sex marriage in inflammatory and offensive
terms. When the Colorado Court of Appeals decided Phillips’s case, it found that
the state’s differential treatment of Phillips’s refusal (based on religion) and these
other bakers’ refusal (based on their disapproval of hateful speech) to be
unobjectionable. In total, Justice Kennedy and the Court found that the
commission treated Phillips with impermissible “hostility” towards his religious
beliefs, in violation of the Free Exercise Clause. 

Once again, Justice Kennedy declined to resolve the case on simpler and
more straightforward doctrinal grounds that were available: that the Colorado
anti-discrimination law, as applied by the commission to Phillips,
unconstitutionally compelled his speech. Instead, Justice Kennedy addressed the
purported conflict of rights and values, between antidiscrimination law and
religious liberty, head-on. And his resolution illustrates how principles of
fundamental law facilitate and ground citizens’ interpretive disagreements, even
the most heated ones, in two respects. 

First, we can see how the application of principles of fundamental law
particularizes disputes to promote ongoing interpretive dialogue. Justice
Kennedy’s opinion operates the same way. Again, his reasoning avoids the more
formalistic, doctrinally convenient, and somewhat artificial solution to the case
(compelled speech) in order to confront the substance of what the case is really
about: the state’s failure to respect Phillips’s religious liberty. Indeed, Kennedy’s
opinion draws energy from the concrete facts of the case in order to animate the
overarching principle that resolves it. Additionally, these particularized facts also
serve to limit the bounds of the interpretive disagreement, reducing its sweep and
permitting temperatures to cool before the Court addresses this front of the
culture wars again.199

Second, like the rest of the marriage equality cases, Kennedy also deploys an
abstract synthesis to navigate these principles of fundamental law. But instead of
promoting coherence over time, this move operates as a strategy to reconcile the
purported conflict of rights in question, by unifying them as manifestations of a
single, coherent value. Justice Kennedy writes that

198. Id. at 1729.

199. See SUNSTEIN, supra note 80. But from Kennedy’s example, we can see that the

deliberation-enhancing virtues of minimalism and particularism can sit comfortably alongside

ambitious theoretical disagreement within an opinion. Cf. Cass Sunstein, Incompletely Theorized

Agreements, 108 HARV. L. REV. 1733 (1995). 



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Our society has come to the recognition that gay persons and gay couples
cannot be treated as social outcasts or as inferior in dignity and worth.
For that reason the laws and the Constitution can, and in some instances
must, protect them in the exercise of their civil rights. The exercise of
their freedom on terms equal to others must be given great weight and
respect by the courts. At the same time, the religious and philosophical
objections to gay marriage are protected views and in some instances
protected forms of expression. . . . Nevertheless, . . . it is a general rule
that such objections do not allow business owners and other actors in the
economy and in society to deny protected persons equal access to goods
and services under a neutral and generally applicable public
accommodations law.200

As a result, it cannot be the case that 

all purveyors of goods and services who object to gay marriages for
moral and religious reasons in effect be allowed to put up signs saying
“no goods or services will be sold if they will be used for gay marriages,”
something that would impose a serious stigma on gay persons. But,
nonetheless, Phillips was entitled to the neutral and respectful
consideration of his claims in all the circumstances of the case. . . . The
Civil Rights Commission’s treatment of his case has some elements of
a clear and impermissible hostility toward the sincere religious beliefs
that motivated his objection.201

And so Phillips’s claim prevails because his religious objection was treated with
hostility, even as Colorado’s public accommodation law continues to apply to
cases like his.

Jamal Greene laments Masterpiece Cakeshop, suggesting that Kennedy’s
opinion does not sufficiently diffuse the high stakes of the fundamental rights
clash at hand—with oral argument hypotheticals painting the parties as
segregationists, Klansmen, and Nazis.202 Even though (perhaps because?) Justice
Kennedy “was sincere in his regard for both sets of rights,” his resolution
emphasizing hostility towards Phillips’s beliefs is another “categorical way out”
that does not “resolv[e] the basic conflict,” a “dodge [that] won’t work for
long.”203 But this analysis misses the key move. Justice Kennedy’s reasoning here

200. Masterpiece Cakeshop, 138 S. Ct. at 1727. The Supreme Court has continued to strengthen

religious exemptions to antidiscrimination law in, e.g., Fulton v. City of Philadelphia, 141 S. Ct. 1868

(2021). But in that case, much like Masterpiece Cakeshop, the majority opinion favorably resolved

the free exercise claim in light of narrow and case-specific circumstances—by reading the city’s anti-

discrimination requirements for adoption agencies not to be generally applicable because they

permitted discretion to lift those requirements in other instances. 

201. Id. at 1728-29.

202. GREENE, supra note 74, at 150-51.

203. Id. at 159-60.



378 INDIANA LAW REVIEW [Vol. 55:319

is not an empty, herky-jerky back-and-forth, flipping between “on the one hand”
and “on the other.” Instead, we should understand his efforts as a profound
attempt to reconcile these competing claims as emanating from a single principle,
what we might call the “anti-hostility” principle. Neither gay citizens nor
religious objectors deserve stigma or opprobrium from our public
institutions—singling them out, either for their protected viewpoint or their
protected status, simply because other members of our divided polity disapprove.
For the state to lend its imprimatur to such stigma and aspersion is indeed to
convey impermissible “hostility,” and it undermines what we have already called
the “constitutional bases of respect.” This effort at abstraction serves to ground
this intense disagreement, between pressing claims of liberty and equality, in a
way that promises to reconcile them together. By deploying principles of
fundamental law aimed at citizens’ common reason, it anchors their claims of
cherished liberty, even when at odds with one another—and, just as importantly,
the bases of their respect—in a single and shared constitutional project. This is
the right way to think about fundamental rights.

In his dissent in Obergefell, Chief Justice Roberts deploys the old charge that
the Court is resuscitating Lochner v. New York, stifling the democratic process.
The Constitution, he writes, “does not enact John Stuart Mill’s On Liberty any
more than it enacts Herbert Spencer’s Social Statics,” paraphrasing Justice
Holmes’s memorable dissent in that case.204 His opinion closes with what seems
to be a grace note, ending with a curious insistence:

If you are among the many Americans—of whatever sexual
orientation—who favor expanding same-sex marriage, by all means
celebrate today’s decision. Celebrate the achievement of a desired goal.
Celebrate the opportunity for a new expression of commitment to a
partner. Celebrate the availability of new benefits. But do not celebrate
the Constitution. It had nothing to do with it.205

But the Chief Justice is wrong about that, because he fails to see that Justice
Kennedy is engaging with the Citizens’ Constitution—principles of fundamental
law, drawing on citizens’ common reason, cutting across the entirety of a trans-
generational project. When citizens celebrate the decision, expressing their views
on social media or incorporating its closing paragraph in their wedding
ceremonies, it is precisely the Constitution that they are celebrating. For both
those citizens who would celebrate Obergefell and those who would oppose it,
it has everything to do with the Constitution, even as they disagree about what its
principles mean. That is the work that fundamental law does, the value it instills
in an enduring constitutional democracy.

204. Obergefell v. Hodges, 576 U.S. 644, 706 (2015) (Roberts, C.J., dissenting) (citing,

somewhat oddly, an unpublished draft opinion by Judge Henry Friendly on abortion rights; see A.

Raymond Randolph, Before Roe v. Wade: Judge Friendly’s Draft Abortion Opinion, 29 HARV. J.L.

& PUB. POL’Y 1035, 1039 (2006)).

205. Id. at 713.



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V. CONCLUSION: CAN WE BE HEROES? FIDELITY, RESPONSIBILITY, AND
DISAGREEMENT ABOUT FUNDAMENTAL RIGHTS

In a recent article, H. Jefferson Powell discusses the phenomenon of “Judges
as Superheroes,” engaged in a cosmic battle between good and evil not unlike the
denizens of the Marvel Cinematic Universe.206 Powell’s observations are astute,
and the humility, charity, and decency he encourages are a welcome corrective
to the corrosive forces at play in many a federal appellate opinion. But it is far
from clear what the proper alternative is. After all, pitched and pervasive
disagreement about constitutional values is with us, and we cannot wish it away.
And as Powell notes, “[i]f Thanos is indeed mounting his final assault on the
planet, superheroes are needed.”207 One possibility is for the courts to truly
confine themselves strictly to technical questions of ordinary law—although it is
far from clear how to realize that goal.208 

But even if judges should not portray themselves as constitutional heroes, that
conclusion does not suggest that citizens pursuing their conception of
constitutional justice should similarly prescind that role. I began this article by
suggesting that we need new heroes, and I agree with Powell that they should
probably not be Article III judges. But I do not think that we should abandon
heroism, or the ideal of constitutional justice that it would promote. It is suitably
democratic, perhaps, that the task then falls to citizens themselves. I have
suggested that citizens should serve as the primary interpreters of their
Constitution as fundamental law. In meeting this responsibility, they must keep
faith—not only with the document and its principles, but with one another, as
fellow participants in an enduring enterprise. In this way, the Constitution and its
ongoing interpretation continually establishes a genuine social contract. Keeping
faith with fellow citizens across deep disagreements and across constitutional
time requires that we show charity and offer a presumption of good faith to one
another. But it does not require that we hide our light under a bushel. This is
especially true because the task falls to us to fill out the recognitional contours of
fundamental rights in order to show our respect for our selves and one another,
and also to relate our Constitution’s past and future to the present, bending the
trajectory towards constitutional justice. 

I have defended a partially moralized conception of fundamental law—one
that is accessible and justifiable to citizens’ common reason, that orients itself
along the arc of constitutional justice over constitutional time, that promotes
citizens’ constitutional bases of respect and constructively channels their
interpretive disagreements. Other moralized conceptions of law, like that of
Ronald Dworkin, have been beleaguered by the criticism that they rely on a

206. H. Jefferson Powell, Judges as Superheroes: The Danger of Confusing Constitutional

Decisions with Cosmic Battles, 72 S.C. L. REV. 917, 941 (2021). 

207. Id. at 942.

208. See Doerfler & Moyn, supra note 15.



380 INDIANA LAW REVIEW [Vol. 55:319

heroic (and undemocratic) notion of the judiciary.209 To be sure, the courts have
a vital role to play in pursuing justice, or at least in pushing our world towards its
more just possibilities. But it is every bit as certain that the courts, alone, will not
save us. Perhaps the most important upshot of all this role responsibility talk is
that when our institutions are imperiled, it falls to us to save ourselves. David
Bowie wrote a beautiful song about two lovers embracing one another at the
Berlin Wall. “We can be heroes,” he crooned, “just for one day.”210 In interpreting
our fundamental law, this sort of everyday heroism is what the conscientious
citizen—not Hercules, the judicial avatar—is cut out to do. It requires that we
carry out our interpretive responsibilities in our individual roles. But even more
importantly, we must share mutual recognition and respect for one another as
citizens; we must share some faith in the possibility of constitutional justice over
time; we must share at least the glimmers of a kind of civic love. Heroically
interpreting the Citizens’ Constitution as fundamental law is something we, the
citizens, can and must do together.211

209. See, e.g., Allan Hutchinson, Indiana Dworkin and Law's Empire, 96 YALE L.J. 637, 637-38

(1987) (parodically reviewing DWORKIN, LAW’S EMPIRE, supra note 11) (“In his own version of The

Greatest Legal Story Ever Told, Indy finds himself in a procession of tight corners, close calls, and

near-misses which he manages to survive by dint of his own ingenuity and imagination. With a

knowing wink and deceptive ease, he reassures us that ‘I'm making this up as I go.’ But, not only does

he survive these escapades unscathed, he manages to come through a stronger and better person for

them, stronger in his conviction about Law's potential and better in his ability to justify its Empire.”).

210. David Bowie, Heroes, HEROES (RCA Records 1977).

211. “We can be heroes, for ever and ever. What d’you say?” Id.