MINIMALISM
Many people, including many politicians and judges, embrace minimalism. They want to avoid broad pronouncements and theoretical ambition. My goal in this chapter is to attempt to understand the justifications for this desire and to explore their limitations. As we shall see, modest ambition has an important place in law, politics, and everyday life within governments, companies, and families.
SHALLOWNESS AND NARROWNESS
When people are confronted with a difficult decision, they often move in the direction of minimalism. Minimalists prefer small steps to large ones. This preference operates along two distinct dimensions.
First, minimalists want to proceed in a way that is shallow rather than deep. In deciding what to do with a political or legal question, minimalists want to leave the biggest and most foundational issues undecided. They want to decide what to do today or tomorrow or next month without resolving the deepest questions, and without accepting some large account of how the political or legal question should be handled.
Second, minimalists want to proceed in way that is narrow rather than wide. They want to decide what to do about next month’s vacation, or a current problem in the workplace, without deciding how to handle many future vacations or what to do about problems in the workplace in general. They want to settle a legal dispute—say, about the rights of a student who claims that she has been unfairly silenced—without settling the rights of all students, including all those who claim that they have been unfairly silenced.
In ordinary life, minimalism, in the form of shallowness and narrowness, can provide a great deal of help with difficult situations. Sensible people often take small steps for that reason. But for those who embrace minimalism, there is an evident problem. Sometimes we need to make a large-scale decision about a political problem. Sometimes it is best to settle on a course of action for the workplace—and even for vacations—rather than to rest content with a series of small decisions. Minimalism might be easiest in the short run, but in the long run, it can be destructive—in part because it exports the burdens of decision to the future, in a way that might produce a great deal of trouble. However difficult a large decision may be, it may be best to make it, and sooner rather than later.
Despite these objections, minimalism plays an exceedingly important role in life, politics, and law. Some judges favor shallow rulings. Such rulings attempt to produce rationales and outcomes on which diverse people can agree, notwithstanding their disagreement on fundamental issues. For example, people vigorously debate the purpose of the free-speech guarantee. Should it be seen as protecting democratic self-government, or the marketplace of ideas, or individual autonomy? Minimalists hope not to resolve these disputes. They seek judgments and rulings that can attract support from people who are committed to one or another of these different understandings—or who are unsure about the foundations of the free-speech principle.
Minimalist judges also like narrow rulings, which do not venture far beyond the problem at hand. They focus on the particulars of the dispute before the court. Consider in this light Chief Justice John Roberts’s suggestion that a big advantage of unanimous decisions from the US Supreme Court is that unanimity leads to narrower rulings. In his words, “The broader the agreement among the justices, the more likely it is a decision on the narrowest possible grounds.”1 The nine justices have diverse views, and if they are able to join a single opinion, that opinion is likely to be narrow rather than broad. This, in the chief justice’s view, is entirely desirable, as he explained with an aphoristic summary of the minimalist position in constitutional law: “If it is not necessary to decide more to dispose of a case, in my view it is necessary not to decide more.”
Note that shallowness and narrowness are very different. We could imagine a decision that is shallow but wide. Consider, for example, the proposition that racial segregation is always forbidden, unaccompanied by any deep account of what is wrong with racial segregation. We could also imagine a decision that is deep but narrow, such as a ban on censorship of a particular political protest, accompanied by an ambitious account of the free-speech principle but limited to the specific situation in which censorship has been imposed. A decision might be both shallow and narrow or both wide and deep—but the two distinctions point in different directions.
It should be clear that both distinctions are ones of degree rather than of kind. In almost all contexts, courts should not decide important cases without giving reasons, and reasons insure at least some degree of depth. No one favors rulings that are limited to people with the same names or initials as those of the litigants before the court. But among reasonable alternatives, minimalists show a persistent preference for the shallower and narrower options, especially in hard situations, or (in the case of judges) problems at the frontiers of constitutional law. Minimalists fear that people lack relevant information and do not have a full sense of the many situations to which a broad rule might apply. Minimalists also fear the potentially harmful effects of decisions that reach far beyond the case at hand.
HOLLOWNESS, SHALLOWNESS, AND CONCEPTUAL DESCENTS
It seems clear that people can often agree on legal and political practices, and even on constitutional rights, when they cannot agree on underlying theories. In other words, well-functioning social orders try to solve problems through incompletely theorized agreements.
Sometimes these agreements involve abstractions, accepted as such amidst severe disagreements on particular cases. Such agreements are common in Congress. The national legislature might able to agree that occupational safety should be protected “to the extent feasible,” or that the air should be made clean to the extent “requisite to protect public health,” without knowing exactly what these words mean. If members of Congress were forced to specify their meaning, serious disagreements might break out, and perhaps the legislation could not pass.
This phenomenon is common in constitutional law. Authors of a constitution can agree on abstractions without agreeing on the specific meanings of those abstractions. They might accept a principle of freedom of speech, even though they cannot specify its scope. People who disagree on whether a constitution should protect incitement to violence and hate speech can accept a general free-speech principle. Those who disagree about whether a constitution should protect same-sex relationships can accept an abstract antidiscrimination principle. We might think of incompletely theorized abstractions as “hollow,” in the sense that they must be filled with some kind of specification.
A pragmatic argument on behalf of hollowness, in the form of incompletely theorized abstractions, is this: nothing else is feasible. Perhaps an effort at specification will prove too contentious. Citizens will support the abstraction but not the specification. Or perhaps constitutional framers lack the information that would give them reason for confidence in any specification. If so, the best way to proceed may be to set out a general norm and allow posterity to fill it in as seems fit.
But sometimes incompletely theorized agreements are the mirror image of hollowness, because they involve concrete outcomes rather than abstractions. In some cases, people might be able to agree that a certain practice is constitutional, even when the theories that underlie their judgments diverge sharply. In the day-to-day operation of constitutional practice, shallow rulings help to promote clarity about what the law is, even amidst large-scale disagreements about what, particularly, accounts for those rulings. Narrow decisions, limited to the case at hand or to a small subset of imaginable cases, have similar virtues.
These points suggest a general strategy for handling some of the most difficult decisions. In ordinary life, we might attempt to bracket the fundamental issues and decide that however they are best resolved, a particular approach makes sense for the next month or year. We have not settled on our career, our romantic future, our investments. We do the best we can to resolve the questions at hand, and only those. We favor shallowness and narrowness. So, too, in law, politics, and morality. When people disagree or are uncertain about an abstract issue—Is equality more important than liberty? Does free will exist? Is utilitarianism right? Does punishment have retributive aims?—they can often make progress by moving to a level of greater particularity. They attempt a conceptual descent.
This phenomenon has an especially notable feature: it enlists silence on certain basic questions as a device for producing convergence despite disagreement, uncertainty, limits of time and capacity, and diversity of views. In short, silence can be a constructive force. Incompletely theorized agreements are an important source of successful constitutionalism and social stability. They also provide a way for people to demonstrate mutual respect.
Consider a few examples. People may believe that it is important to protect religious liberty while having quite diverse theories about why this is so. Some people may stress what they see as the need for social peace; others may think that religious liberty reflects a principle of equality and a recognition of human dignity. Some may invoke utilitarian considerations, while others think that religious liberty is itself a theological command. Similarly, people may invoke many different grounds for their shared belief that the Constitution should insure an independent judiciary. Some think that judicial independence helps insure against tyranny; others think that it makes government more democratic; and still others think that it leads to greater efficiency in economic terms.
Often people can accept an outcome—banning racial segregation, protecting sexually explicit art—without understanding or converging on an ultimate ground for that acceptance. Often people can agree not merely on the outcome but also on a rationale offering low-level or midlevel principles on its behalf. But what ultimately accounts for the outcome, in terms of a full-scale theory of the right or the good, is left unexplained.
There is an extreme case of incomplete theorization, offered when disagreement is especially intense: full particularity. This phenomenon occurs when people agree on a result but without concurring on any kind of supporting rationale. They announce what they want to do without offering a reason for doing it. Any rationale—any reason—is by definition more abstract than the result that it supports. Sometimes people do not offer reasons at all, because they do not know what those reasons are, or because they cannot agree on reasons, or because they fear that their reasons would turn out, on reflection, to be inadequate and misused in the future. Juries usually do not offer reasons for verdicts, and negotiators and mediators sometimes conclude that something should happen without saying why it should happen.
My emphasis on incompletely theorized agreements is intended partly as descriptive. These agreements are a pervasive phenomenon in politics and law. Such agreements are crucial to the effort to make decisions amidst intense disagreement. But I mean to defend such agreements as well. In the public and private sectors, there are real virtues to avoiding large-scale theoretical conflicts, and to resolving the problem at hand while leaving other problems for another day.
CONVERGING ON PRACTICES
It seems clear that people may agree on a correct outcome even though they do not have a theory to account for their judgments. You may know that dropped objects fall, bee stings hurt, hot air rises, and snow melts without knowing exactly why these facts are true. You may know that slavery and genocide are wrong, that government may not stop political protests, and that every person should have just one vote, without knowing exactly why these things are so. Moral judgments may be right or true even if they are reached by people who lack full explanations for those judgments. People can know that X is true without entirely knowing why X is true.
In American constitutional law, diverse judges may agree that Roe v. Wade (1973),2 protecting the right to choose abortion, should not be overruled, though the reasons that lead each of them to that conclusion diverge sharply. Some people think that the Court should respect its own precedents; others think that Roe was rightly decided as a way of protecting women’s equality; others think that the case was rightly decided as a way of protecting privacy; others think that the decision reflects an appropriate judgment about the social role of religion; still others think that restrictions on abortion are unlikely to protect fetuses in the world, and so the decision is good for pragmatic reasons.
Rules and analogies are the two most important methods for resolving constitutional disputes without agreeing on fundamental principles. Both of these devices—keys to public law in many nations—attempt to promote a major goal of a heterogeneous society: to make it possible to obtain agreement where agreement is necessary, and to make it unnecessary to obtain agreement where agreement is impossible.
People can often agree on what the rules are, including the Constitution’s rules, even when they agree on very little else. Their substantive disagreements, however intense, are usually irrelevant to their judgments about the meaning and the binding quality of those rules. And in the face of persistent disagreement or uncertainty about what justice and morality require, people can reason about particular constitutional cases by reference to analogies. They point to cases in which the legal judgments are firm. They proceed from those firm judgments to the more difficult ones. In fact, this is how ordinary people tend to think.
We might consider in this regard United States Supreme Court Justice Stephen Breyer’s discussion of one of the key compromises reached by the seven members of the United States Sentencing Commission.3 As Breyer describes it, a central issue was how to proceed in the face of very different views about the goals of criminal punishment. Some people wanted the commission to base punishment on “just deserts”—an approach that would rank criminal misconduct in terms of severity. But different commissioners had diverse views about how different crimes should be ranked. Agreement on a rational system would be unlikely to follow from efforts by the seven commissioners to rank crimes in terms of severity.
Other people urged the commission to use a model of deterrence. There were, however, major problems with this approach. No good empirical evidence links all possible variations in punishment to prevention of crime. In any case, the seven members were highly unlikely to agree that deterrence provides a full account of the aims of criminal sentencing.
Under these circumstances, what route did the commission follow? In fact, the members abandoned large theories altogether. They adopted no general view about the appropriate aims of criminal sentencing. Instead, the commission abandoned high theory and adopted a simple rule—one founded on precedent. It based the guidelines mostly on the average past practice. The decision to adopt this approach must have been based on a belief that the average practice contained sense rather than nonsense—a belief that can be supported by reference to the frequent “wisdom of crowds.”4
Justice Breyer sees this effort as a necessary means of producing agreement and rationality within a diverse, multimember body charged with avoiding unjustifiably broad variations in sentencing. Thus his colorful oral presentation: “Why didn’t the Commission sit down and really go and rationalize this thing and not just take history? The short answer to that is: we couldn’t. We couldn’t because there are such good arguments all over the place pointing in opposite directions . . . Try listing all the crimes that there are in rank order of punishable merit . . . Then collect results from your friends and see if they all match. I will tell you they don’t.”5
The example suggests a more general point. Through both analogies and rules, it is often possible for participants in constitutional law to converge on both abstract principles and particular outcomes without resolving large-scale issues of the right or the good. The recognition of rights is often possible for this reason. Consider the growth of a norm against genocide, which attracted international support without much in the way of theory.6 Indeed, the Universal Declaration of Human Rights was produced through a process akin to that described by Justice Breyer, with a refusal to engage high theory and, instead, an effort to build on widespread understandings.7 The basic enterprise operated by surveying the behavior of most nations and then building a “universal declaration” on the basis of shared practices. A philosophers’ group involved in the project “began its work by sending a questionnaire to statesmen and scholars around the world.”8 The Universal Declaration of Human Rights emerged from this process. Thus Jacques Maritain, a philosopher closely involved in the Universal Declaration, said famously, “Yes, we agree about the rights, but on condition no one asks us why.”9
If such processes work better than imaginable alternatives, it is because they reduce the costs of decisions and the costs of errors. Theoretical depth is often difficult and costly to achieve, certainly when a number of people are asked to agree to a controversial proposition. By insisting on shallowness, people can also avoid the kinds of mistakes to which theory builders are prone. An incompletely theorized agreement may limit the costs of making decisions while simultaneously reducing the risk of errors.
INCOMPLETE THEORIZATION AND SILENCE
Some people think of incomplete theorization as quite unfortunate—as embarrassing, or reflective of some important problem, or a failure of nerve, or even philistine. When people theorize, by raising the level of abstraction, they do so to reveal bias, or confusion, or inconsistency. Surely participants in politics and constitutional law should not abandon this effort.
There is important truth in these usual thoughts. It would be senseless to celebrate theoretical modesty at all times and in all contexts. Sometimes people have enough information, and enough agreement, to be very ambitious. Sometimes they have to reason ambitiously in order to resolve cases. If the theory-building capacities of judges (or others) are infallible, theoretical ambition would be nothing to lament. But judges are hardly infallible, and incompletely theorized judgments help make constitutions and constitutional law possible. They even help make social life possible. Silence—on something that may prove false, obtuse, or excessively contentious—can help minimize conflict, allow the present to learn from the future, and save a great deal of time and expense. What is said and resolved may be no more important than what is left out. There are four points here.
First, a degree of shallowness may be necessary for social stability. Incompletely theorized agreements are well suited to a world—and especially a political and legal world—containing social divisions on large-scale issues. Stability would be difficult to obtain if fundamental disagreements broke out in every case of public or private dispute. In many nations, stable constitutions and laws have been possible only because the meaning of broad terms has not been specified in advance.
Second, incompletely theorized agreements can promote two goals of a constitutional democracy and a liberal legal system: to enable people to live together, and to permit them to show one another a measure of reciprocity and mutual respect. The use of low-level principles or rules allows people to find a common way of life without producing unnecessary antagonism. At the same time, incompletely theorized agreements allow people to show one another a high degree of mutual respect, civility, reciprocity, or even charity.
Frequently, ordinary people disagree in some deep way on an issue—what to do about the Middle East, pornography, same-sex marriages, the war on terror—and sometimes they agree not to discuss that issue much, as a way of deferring to one another’s strong convictions and showing a measure of reciprocity and respect (even if they do not at all respect the particular conviction that is at stake). If reciprocity and mutual respect are desirable, it follows that public officials or judges, perhaps even more than ordinary people, should not challenge their fellow citizens’ deepest and most defining commitments, at least if those commitments are reasonable and if there is no need for them to do so. Indeed, we can see a kind of political charity in the refusal to contest those commitments when life can proceed without any such contest.
True, some fundamental commitments are appropriately challenged. Some such commitments are ruled off-limits by the Constitution itself. Many provisions involving basic rights have this function. Of course, it is not always disrespectful to disagree with someone in a fundamental way; on the contrary, such disagreements may reflect profound respect. When defining commitments are based on demonstrable errors of fact or logic, it is appropriate to contest them. So, too, when those commitments are rooted in a rejection of the basic dignity of all human beings, or when it is necessary to undertake the contest to resolve a genuine problem. But many controversies can be resolved in an incompletely theorized way, and this is the ordinary stuff of politics and law; that is what I am emphasizing here.
Third, incompletely theorized agreements have the crucial function of reducing the political cost of enduring disagreements. If participants in a disagreement disavow large-scale theories, then losers in particular cases lose much less. They lose a decision but not the world. They may win on another occasion. Their own theory has not been rejected or ruled out of bounds. When the specific result is disconnected from abstract theories of the good or the right, the losers can submit to political or legal obligations, even if reluctantly, without being forced to renounce their most deeply held ideals.
Fourth, incompletely theorized agreements are especially valuable when a society seeks moral evolution and even progress over time. Consider the area of equality, where considerable change has occurred in the past and will inevitably occur in the future. A completely theorized judgment would be unable to accommodate changes in facts or values. If a culture really did attain a theoretical end state, it would become rigid and calcified; we would know what we thought about everything.
Incompletely theorized agreements are central to debates over equality, with issues being raised about whether discrimination on the basis of sexual orientation, age, disability, and other characteristics is analogous to discrimination on the basis of race. Such agreements have the important advantage of allowing a large degree of openness to new facts and perspectives.
Something similar is true in ordinary life. At a certain time, you may well refuse to make decisions that seem foundational in character—about, for example, whether to get married within the next year; or whether to have two, three, or four children; or whether to live in London or Paris. Part of the reason for this refusal is the knowledge that your understandings of both facts and values may well change. Indeed, your identity may itself change in important and relevant ways, and a set of firm commitments in advance—something like a fully theorized conception of your life course—would make no sense. Political systems and legal systems are not altogether different.
NARROWNESS AND ITS DISCONTENTS
My emphasis thus far has been on shallowness; it is time to reintroduce narrowness. A court might rule that one exercise of presidential power is unconstitutional, without saying much about other imaginable exercises of presidential power. A court might conclude that sex segregation is impermissible in one domain, without saying much about whether sex segregation might be impermissible in other domains. Recall here Chief Justice Roberts’s suggestion that if it is not necessary for a court to say more to decide a case, it is necessary for a court not to say more to decide a case.
Why would sensible politicians or judges embrace narrowness? We can isolate several reasons. First, institutional reality may require it. On a multimember court consisting of several (strong-willed?) people, it might be possible to reach a consensus on a particular outcome but not on a wide rule. Second, wide rulings might impose serious burdens on judges, even if the institutional problem could be overcome. To issue a wide ruling that resolves numerous disputes about presidential power to reduce the risks of terrorist attacks, or about constitutional protection of speech on the internet, judges may have to ask and answer questions for which they lack relevant information. Third, wide rulings might turn out to be embarrassing in the future in light of unanticipated scenarios and changes over time. If politicians or courts are in a poor position to generate rules that fit novel situations, their efforts to do so might produce serious blunders.
For judges, there is a fourth point, involving democratic self-government. In the constitutional domain, narrow rulings preserve a great deal of space for continuing discussion and debate. Imagine, for example, that a court is asked to issue some wide ruling involving the rights of disabled people or the authority of the president. A refusal to issue that ruling, and a narrow decision focused on particulars, allow room for continuing debate among citizens and their representatives.
These various points suggest that in many contexts, a narrow ruling (not less than a shallow one) can minimize the costs of decisions and the costs of errors. By definition, narrow rules impose lower decision-making burdens on judges. At the same time, they might help judges to avoid errors, certainly if the judges lack the information that would justify width.
Of course, we can imagine contexts in which this defense of shallowness is inadequate. If the Constitution is clear—for example, because basic rights are at risk—the argument for narrowness is much weakened. Or suppose that a court is operating in an area in which predictability is extremely important—perhaps because the issue comes up often, and it is simply too messy to have to proceed without a sense of what the law is. If this is so, narrow rulings will impose significant decision-making burdens on others, and very possibly increase the costs of decisions on balance. If the result of narrow rulings is to make a mess of the law, posterity might be harmed rather than helped.
We can see here a potential problem with Chief Justice Roberts’s embrace of unanimous rulings. Roberts favors such rulings in part on the ground that they promote predictability. If the court is not fractured, everyone will know what the law is. But as Roberts also contends, a unanimous ruling is more likely to be narrow simply because a wide ruling is unlikely to attract a consensus. The problem is that a unanimous but narrow ruling might offer significantly less guidance than a divided but wide ruling. From the standpoint of promoting predictability, it may be better to have a 7–2 ruling in favor of some general proposition than a 9–0 ruling in favor of some narrow proposition, limited to particular facts.
CONCEPTUAL ASCENTS: FROM SHALLOWNESS TO DEPTH
Borrowing from the British philosopher Henry Sidgwick’s writings on ethical method,10 a critic of shallowness might respond that constitutional law should frequently use ambitious theories.11 Concrete judgments about particular cases can prove inadequate for morality or constitutional law. Sometimes people do not have clear intuitions about how cases should come out. Sometimes their intuitions are insufficiently reflective. Sometimes seemingly similar cases provoke different reactions, and it is necessary to raise the level of theoretical ambition to explain whether those different reactions are justified, or to show that the seemingly similar cases are different after all. Sometimes people simply disagree.
By looking at broader principles, we may be able to mediate the disagreement. When modest judges join an opinion that is incompletely theorized, they must rely on a reason or a principle, justifying one outcome rather than another. The opinion itself must refer to a reason or principle; it cannot just announce a victor. Perhaps the low-level principle is wrong because it fails to fit with other cases or because it is not defensible as a matter of (legally relevant) political morality.
In short, the incompletely theorized agreement may be nothing to celebrate. If a judge is reasoning well, he should have before him a range of other cases, in which the principle is tested against others and refined. At least if he is a distinguished judge, he will experience a kind of “conceptual ascent,” in which the more or less isolated and small low-level principle is finally made part of a more general theory. Perhaps this would be a paralyzing task, and perhaps our judge need not attempt it often. But perhaps it is an appropriate aspiration for evaluating judicial and political outcomes. On this view, judges and politicians who insist on staying at a low level of theoretical ambition are philistines—even ostriches.
Return to ordinary life. If someone is unsure what to do with a relationship or a medical problem, he might not do so well if he avoids the foundational questions. If he can answer those questions well, he might be able to choose far more wisely than he will do if he plods along with decisions that are at once narrow and shallow. Something similar may be true in the constitutional domain. Indeed, we might go beyond necessity and speak instead of opportunity. Perhaps it is best to see constitutional provisions as inviting a degree of depth, and therefore to celebrate those occasions when courts announce the nature of the foundational commitments that underlie one right or another.
At least if moral and constitutional reasoners have time and competence, they might need or want to attempt a degree of theoretical ambition. In democratic processes, it is appropriate and sometimes indispensable to challenge existing practice in abstract terms. The same is true in constitutional law.
This challenge to incompletely theorized agreements should not be taken for more than it is worth. Its force depends on the context—on the kinds of information that judges have and on whether they have reason for confidence in deep rulings. We need to investigate the costs of decisions and the costs of errors. As I have noted, incompletely theorized agreements have many virtues. They promote stability, reduce the costs of disagreement, and demonstrate humility and mutual respect. A conceptual ascent might be appealing in the abstract, but if those who ascend will blunder, they might better stay close to the ground.
INCOMPLETELY THEORIZED AGREEMENTS, DISAGREEMENT, AND STABILITY
In law, as in politics, disagreement can be a productive and creative force, revealing error, showing gaps, and moving discussion and results in good directions. Many political systems place a high premium on “government by discussion,” and real discussion requires a measure of disagreement. Agreements may be a product of coercion, subtle or not, or of a failure of imagination.
Social consensus is hardly a consideration that outweighs everything else. Usually it would be much better to have a just outcome, rejected by many people, than an unjust outcome with which all or most agree. A just constitution is more important than a constitution on which everyone agrees. Consensus or agreement is important largely because of its connection with stability, itself a valuable but far from overriding social goal. It may well be right to make an unjust constitutional order a bit less stable. We have seen that incompletely theorized agreements, even if stable and broadly supported, may conceal or reflect injustice.
It would be foolish to say that no general theory about constitutional law or rights can produce agreement, even more foolish to deny that some general theories deserve support, and most foolish of all to say that incompletely theorized agreements warrant respect, whatever their content. What I am suggesting here is more modest. In the face of serious disagreement, minimalism may provide the best path forward—even the only path forward. It deserves a respected place in law, politics, and ordinary life.