Value Pluralism and the Constitution

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VALUE PLURALISM AND THE CONSTITUTION

Value pluralism is the idea that legitimate human values and goals are many, often incompatible, and not reducible to any single overarching principle or conception of the good. Individuals, and certainly societies, have aspirations that conflict and therefore cannot all be fully realized. A society cannot have perfect human equality and perfect liberty, for example, because people will often exercise freedom to differentiate themselves, and hence to make themselves unequal to their fellows. Equality or freedom may be at odds with other values as well, like tradition, or the desire for social unity, or for social tolerance; good government may be at odds with self-government; secularism with the desire for shared faith; and so forth. Value pluralism implies the need for compromise and conciliation, and an open marketplace of ideas—many of which may be good, although conflicting. Value pluralism is a theme closely identified with the thought of Sir Isaiah Berlin, the English philosopher and historian of ideas. As Berlin pointed out, pluralism itself is at odds with the dream of philosophical harmony: the quest for a unified system of true values, and for consistent right answers about how we should live. Many systems of belief in human history have held out this hope of ultimate unity—Platonist, religious, rationalist, or Marxist. Such "monism" can smack of tyranny, however. The idea that any one ideal or system of values represents all that is good may imply enforcing the ideal "by whatever means necessary."

Value pluralism, on the other hand, is associated with liberalism, for a defining element of liberalism is respect for human autonomy—freedom for people to make their own choices about what is good and worthy in life. (Free people inevitably make various and conflicting choices. This does not trouble the pluralist who sees the possibility of good in many of these choices. It is the believer in a single ideal who may be more troubled by people making "wrong" choices.) As an outlook, therefore, value pluralism is congenial to the U.S. Constitution, since the Constitution is a liberal charter.

freedom of speech, for example, has obvious overtones of value pluralism: among conflicting ideas, many may be good. So likewise for religious liberty. The detailed plan for elective office-holding, which occupies a large chunk of the Constitution, also implies value pluralism. Free elections mean that officials and parties with conflicting ideals will tend to alternate with each other. This might seem perverse to a believer in a single ideal or in a unified system of values who would question why falsehood and wrong should be allowed to alternate with truth and goodness. But popular elections make more sense if there might be good in many of the conflicting ideals, from Federalist to Whig, and Democratic to Republican.

Value pluralism has equivocal implications for judicial review, one of the most distinctive features of American constitutionalism. The courts' power to strike down the acts of other branches of government can sometimes promote plurality of values in American life. Judicial review of censorship, or of restrictions on religious freedom, for example, can protect pluralism of thought or of religion at times when there might be strong majority pressures for uniformity. By striking down acts of Congress as going beyond federal power under the Constitution's federalism provisions, judicial review can also be a counterweight against the tendency of the national government to impose national uniformity. The courts can ensure that state or local governments are free to adopt various values and policies, instead of a single policy or ideal that is enforced nationwide.

But on the whole, the implications of value pluralism are in the direction of judicial restraint. Judicial review tends to impose a single standard, and to preempt the coexistence of competing interpretations of the Constitution in different parts of the country and at different times. This is because courts are hierarchical. Appellate review, supervised ultimately by the Supreme Court, means that only one judicial interpretation can prevail, at least in principle, at any given time. Deference to precedent and stare decisis tends to preserve such sole, exclusive interpretations even over time. Nonjudicial branches of government, by contrast, are more pluralist. There are more of them—federal and state—and they are more independent of one another. A policy decision (or an interpretation of the Constitution) by any of them is more easily changed or overruled than are the constitutional doctrines of the courts.

The perennial debate in America about the courts and the Constitution is not whether there should be judicial review, but how aggressive it should be and how broadly public issues should be treated as questions of constitutional law. To what extent (if at all) should abortion be a constitutional question? What about routine police procedure and public aid to private (including parochial) schools or their students? What about campaign finance or laws that treat the sexes differently? Value pluralism weighs against judicial activism, at least during times when there is little realistic threat that social pressures would impose their own uniformity across the country in the absence of judicial intervention. With somewhat less constitutional law, there would be more scope for a plurality of policies, ideals, and values—many of which might conflict, but nonetheless (at least some of them) be good.

Maimon Schwarzschild
(2000)