II. CONSTITUTIONAL SKEPTICISM

Skepticism about the constraining function of liberal constitutionalism gives priority to the overarching need to have unconstrained flexibility in choosing means to preserve the nation and its constitution. A decision as to how to proceed in the face of national security threats is required, and in the quotable opening line of Schmitt's famous Political Theology, “Sovereign is he who decides on the exception.”Footnote ²⁹ Decisions, on this view, precede normative commitments. Exceptions to established normative orders create, in the philosopher Giorgio Agamben's words, “a threshold where fact and law seem to become undecidable.”Footnote ³⁰ What is rule, and what is an act outside the rule, becomes indistinguishable on this view. Schmitt and Agamben are therefore skeptical about the ability for rules to constrain the action of a sovereign decider. The sovereign decider's choices either precede or exceed applicable legal norms and rules. On this theory, constitutions therefore do no work to constrain discretionary executive decisions.Footnote ³¹

According to this skeptical view, the most that a liberal constitution can do is to assign power to a particular governing body to make decisions about how to respond to the exception. It cannot constrain the content of that decision. Paul Kahn articulates this view as giving priority to the decision over the operation of legal norms, for “[t]he exception, accordingly, can only be recognized in the decision,” because “[o]nce the sovereign decides on the exception, we cannot know what might otherwise have happened” and thus “we cannot measure” the decision against a standard.Footnote ³² These decisions shape the polity.Footnote ³³ Governing priorities such as national security provide the principal goals, but these decisions are undetermined by existing rules and norms. In some sense, they arise as if from nowhere, at least regarding the means by which the overarching end of national security might be achieved.Footnote ³⁴ But in another respect, the national security end does provide purposive constraint—executive actors must aim to keep the nation safe from external threat.

Executive branch officials have argued in practice for a similar position regarding the existence of unchecked presidential power to protect the nation. Here is the view expressed in a U.S. Department of Justice memo: “The text, structure and history of the Constitution establish that the Founders entrusted the President with the primary responsibility, and therefore the power, to ensure the security of the United States in situations of compelling, unforeseen, and possibly recurring, threats to the nation's Security.”Footnote ³⁵ Another version of this view has its origins in the Roman dictatorship—an approach that suspends the ordinary legal order to preserve it by assigning authority to a decider.Footnote ³⁶ As Schmitt argues, the “suspend to preserve” approach limits constitutional constraint to the ability to assign decisional authority, not to provide normative guidance to the decision's content.

Another, more contemporary, version of this view challenges the Madisonian framework of institutional checks. Madisonian constitutionalism is motivated by a liberalism of fear that absent constitutional constraints, dystopian states of governance might follow. On the skeptical view, however, politics and demographics, rather than constitutional provisions, do the work in preventing a slide into systemic executive tyranny. “The modern economy, whose complexity creates the demand for administrative governance, also creates wealth, leisure, education, and broad political information, all of which strengthen democracy and make a collapse into authoritarian rule nearly impossible.”Footnote ³⁷ On this view, the liberalism of fear that produces institutional checks and rights limitations are not causally efficacious in preventing tyranny. Politics does all the work. Moreover, on this view, liberal constitutionalism's fear of legally unbounded executive authority constitutes “tyrannophobia.”Footnote ³⁸ So not only are constitutional constraints ineffective, they may in fact be harmful. They are all the more so if they prevent executive officials from acting as they deem necessary by creating a risk that fear of tyranny might turn the constitution into a “suicide pact.”Footnote ³⁹

Skepticism of the constraining ability of more specific constitutional principles within the American Constitution can be tied to a narrow commitment to rule following. On this view, the Constitution embeds within its structural framework a principle of necessity that assigns responsibility for protecting the nation to the executive. This constitutional principle of necessity functions as a rule capable of overriding all other rules.Footnote ⁴⁰ Rather than constrain, the Constitution confers decision-making authority on the executive to do whatever it takes to protect security. Because the future is so fraught with uncertainty and the challenges potentially unforeseeable, executive officials should have unbounded latitude in deciding how best to respond. In this way, the constitutional principle of necessity functions as a meta-rule that when applicable, renders ineffective the content of all other rules.Footnote ⁴¹ Because it provides a triggering condition—emergencies, crisis or other necessitous circumstances—but no normative guidance derived from other rules, this view is another form of rule skepticism. Because constraints do not constrain under necessitous circumstances, the principle of necessity empowers without further normative guidance. Thus, this view simply constitutionalizes the Schmittian claim that the most liberal constitutionalism can do is to assign jurisdictional authority over exceptional decisions.

On the distinction that David Dyzenhaus identifies between legal black holes where law is absent and legal gray holes where the appearance of law governs without determinate guidance, this constitution of necessity raises the prospect of the appearance of legal constraint undergirded instead by political will.Footnote ⁴² A constitution of necessity allows an executive official to claim rule-governed actions while acting at will to do whatever is necessary to protect security, creating what Dyzenhaus identifies as a legal gray hole. Because no standard governs what counts as necessary, executive discretion has few limits. A weaker form of this problem of legal gray holes is that there is an unavoidable openness in legislative assignments of power to executive officials, creating the conditions for widespread minimally constrained legal discretion. The lack of constraint follows from the absence of judicially enforceable criteria for determining whether executive officials have complied with the legislation.Footnote ⁴³ As a result, executive officials operate in legal gray holes where they are able to assert that they are following rules without any independent institutional check on their claims.Footnote ⁴⁴ Such deference is even more pronounced during times of emergency and crisis.Footnote ⁴⁵ Moreover, under Posner and Vermeule's approach to unbounded executive action checked only by politics, gray holes are ineliminable and normatively desirable states of affairs. Although all rule-governed practices have discretionary aspects, the existence of gray holes inverts the relationship between rule and discretion to make discretion the paradigm and rule following the exception.

From these puzzles of constraint, we see that liberal constitutionalism is beset by a family of skeptical positions. Madisonian political practices presuppose institutions occupied by individuals who take constitutive rules as reasons for acting and as constraints on choices. But this skeptical family casts doubt on Madisonian conceptions of institutional structures.Footnote ⁴⁶ On one extreme is the skeptical position that legal rules cannot determine actions, especially in emergencies, and thus the only thing that liberal constitutionalism can do is assign authority to officials who will decide what to do. Norms and rules of constitutional law fail to constrain or to determine the content of these decisions. This view is the pure skeptical position. An intermediate position claims that constitutions have a role to play not only in assigning authority to a decider, but in embedding a principle of necessity that provides the requisite legal rule to do whatever is necessary in exceptional circumstances. This view is either a weak form of skepticism or a form of ordinary rule following. In the case of ordinary rule following, rules are always open to challenge over how best to apply them. So the rule to do whatever is necessary can be construed as an interpretive method of reconciling the open texture of applicable rules with the necessities of the situation that in practice will be open to normative challenge. As a case of weak skepticism, the principle of necessity has priority over the efficacy of other constitutional rules, though shorn of any normative standard for evaluating the appropriateness of actions aside from whether they succeed in achieving their end. This version of the internal principle of necessity is functionally indistinguishable from the pure skeptical position in that it empowers a decider who remains free to decide on questions of national security absent further Madisonian checks. Because the principle of necessity assigns the executive sole power over necessitous circumstances, neither executive determinations of the facts of necessity nor executive choices about how to respond to events are open to legal check. On this view, liberal constitutionalism embeds a principle that has the effect of overriding, or suspending, the ordinary function of other constitutional norms.

Finally, there is a view that not only do legal rules fail to determine executive action, especially in exceptional circumstances, but that officials use existing rules to mask unconstrained discretion. Such a view is a form of rule cynicism. It gives the appearance of rule-governed action, but practices legally unconstrained discretion. Rule cynicism could arise as a feature of delegated authority in the administrative state. Legislative delegation may appear to provide constraining standards, but in fact provides untrammeled discretion. Within these legal gray holes, executive officials may be able to act without regard to rules, but provide post hoc rationalizations made in terms of rule following. Discretion may be unavoidable in the modern administrative state, but the degree to which the appearance and reality of rule following may diverge is a matter of choice. As a more systemic practice beyond the administrative state, rule cynicism could be a version of legal realism in claiming that despite the surface appearance of rule governance, legal decision-makers—including judges—remain unconstrained by legal form. Instead they use the formal appearance of legal rules to mask the discretion they exercise and the decisions they reach on nonlegal grounds. Rather than legal rules, Herman Oliphant argued, courts “respond to the stimulus of the facts in the concrete cases before them rather than the stimulus of over-general and outworn abstractions in opinions and treatises.”Footnote ⁴⁷ Or, as Karl Llewellyn argued, legal realism distrusts “traditional legal rules and concepts insofar as they purport to describe what either courts or people are actually doing,” and denies that “traditional prescriptive rule-formulations are the heavily operative factor in producing court decisions.”Footnote ⁴⁸ Reasons other than rule prescriptivism explain, on the legal realist view, the outcomes of cases, even though courts present themselves as following rules. Realist scholarship is rule skeptical, aimed at unmasking and explaining adjudicatory practices in which legal rules and reasons are indeterminate. Judicial practice is rule cynical because it purports to do one thing—follow legal rules—while it does something else—decide on personal or other grounds.Footnote ⁴⁹

One feature of the pure skeptical view is that it is indistinguishable in practice from the cynical view. In theory, the skeptical position holds that there is nothing about liberal constitutional rules, or legal rules in general, that provides a determinate guide to action. Especially during necessitous circumstances, the obligation for executive officials to protect national security provides the needed power to act, unconstrained by constitutional limits. Without rule determination, unbridled discretion reigns, meaning that any action can be said to accord with the rules. And if any action can accord with the rules, then the rules do no work to constrain or guide government action. Rule cynicism exploits the skeptical conclusion that any action can accord with the rule by purporting to follow the rule believed to provide no constraint though accepted as applicable by others. If this is the theoretical view one takes of liberal constitutional rules, then the question is what does this view look like in practice?

When skepticism is not a widely shared view, the skeptical governing actor becomes a cynic. Let's posit that the existence of a phenomenon Posner and Vermeule label as “tyrannaphobia” means that many constitutional actors—from citizens, to courts, to government officials—believe that liberal constitutional rules matter to the character of their actions.Footnote ⁵⁰ Moreover, these rules are believed to be causally effective in preventing a slide into authoritarian tyranny. Or, stated in the positive, following these rules is believed to advance legitimate, nontyrannical government action.Footnote ⁵¹ Posner and Vermeule's conclusion is that the fear of tyranny has no demonstrable causal connection to the prevention of tyrannical government. Madisonian institutional structures based on such fear do no work that politics does not already do in keeping liberal government free from tyranny. In fact, they posit that fear might be harmful to the polity, preventing adoption of advantageous policies. The unbound executive who adopts this descriptive view will push the boundaries of constitutional action, asserting that if the president engages in an action it must be constitutional, in a context in which others believe that the constitution provides a more robust independent institutional check. Even if this diagnosis of “tyrannaphobia” has merit, it will also be descriptively true that constitutional principles and practices structure political behavior and beliefs at least for some legal actors. For citizens, courts, and officials, the Constitution matters to their conceptions of the nature of their offices and the norms that create obligations and provide motivations for action.Footnote ⁵² If the skeptical executive official acts within an institutional context in which others are nonskeptics, then the government actor becomes a cynic—wearing the mantel of law while acting without regard to it.Footnote ⁵³ In this way, the practical effect of constitutional rule skepticism is rule cynicism.

Rule cynicism in practice can take different forms. The gray zone actor whose actions lack a reviewable standard by which to measure them is not in itself an example of cynicism unless the actor adopts an attitude of indifference to operative legal rules and standards. In this situation, the structure of vague delegated standards makes cynical action possible when officials adopt attitudes of indifference to legal rules and standards. Knowing that nearly any action will count as complying with the legislative rule, the executive actor can choose how to act without considering the rule as a reason or guide for action while nonetheless claiming to follow the rule. Because others view the rule as providing reasons and guides for acting, the cynic exploits a gap between external and internal attitudes toward rules.Footnote ⁵⁴ For the internal aspect, rules are accepted as guides to action, whereas for an external aspect, rules constrain the actions of others who accept them.Footnote ⁵⁵ To take the internal point of view, as H.L.A. Hart explains, is “to be concerned with rules . . . as a member of the group which accepts and uses them as guides to conduct.”Footnote ⁵⁶ By contrast, the cynic seeks to maintain a position external to the rules while nonetheless seeming to be guided by them. If others agree in judgments regarding the application of rules, the cynic seeks to justify ex post choices made ex ante without regard to the rule. Such cynicism is not only a function of the relationship between attitudes and public presentations, but also created by the relationship between the rule and its application. Not all, or even much, delegated discretion counts as cynical. Exercising discretion under vague standards is not itself a practice in cynicism.Footnote ⁵⁷ Yet, the structural possibility of such cynicism exists depending on the attitudes toward rules adopted by executive decision-makers. Discretion exercised from within an internal aspect continues to view the continuity and coherence of applicable rules as salient to the decision-making process and to the reasons and justifications for acting.Footnote ⁵⁸

But rule cynicism could also take the strong form of President Nixon's claim that if the president takes an action, it cannot be illegal.Footnote ⁵⁹ Such an approach collapses the distance between rule and application in a way that makes reference to a rule cynical. This form of cynicism is a product of the attitude adopted by the official who does not see that the rule provides an internal reason for acting.Footnote ⁶⁰ Such an official does not accept that the rule imposes obligations. The rule can only be an external source of constraint, but one to be manipulated and plied while claiming that actions conform. For example, government lawyers in the Bush administration justified presidential authority to engage in torture by redefining legal rules and factual circumstances to allow the president to take any action he judged necessary while yet claiming legal authority.Footnote ⁶¹ Regarding the flawed reasoning of this later withdrawn analysis, Jack Goldsmith described the cynicism of the argument this way: “Violent acts aren't necessarily torture; if you do torture, you probably have a defense; and even if you don't have a defense, the torture law doesn't apply if you act under color of presidential authority.”Footnote ⁶² Such rule cynicism is more than rule indifference. From the perspective of Oliver Wendell Holmes's “bad man,” one wants to predict what will happen as a consequence of rule violations.Footnote ⁶³ Holmes's “bad man” is rule indifferent, willing to comply with legal norms only under threat of sanction, not because the rules become internal reasons for responding to the world in particular ways. Indifference yields to cynicism when the “bad man” can claim any action complies with the rule. Absent effective threats of legal or political sanction, cynical attitudes toward rules provide no consequentialist limit on officials’ choices, and thus create no distinction between the “bad man's” will and the application of the rule.

Each of these skeptical views—the pure skeptic, the weak skeptic, and the cynic—challenges the operation of constitutional constraints. If these views are correct, then liberal constitutionalism faces a crisis of constraint. A system based on institutions designed to check power and constituted by norms designed to guide actions falters because institutional actors need respond to no more than political, rather than legal, constraints. But these external constraints might prove to be weak or nonexistent constraints. Because executive officials are able to shape politics around claims that actions taken are necessary to ensure public security, both legal rules and their political checks rely on these initial executive judgments. Skeptical of rules, executive actors can shape external judgments by adopting cynical internal attitudes. What executive officials do determines what legal rules mean.

III. THE RELATION OF CONSTITUTIONAL PRINCIPLE AND PRACTICE

If such an absence of constitutional constraint describes the actual situation of liberal constitutional governance, then what prevents a liberal polity from sliding into a state we might presently describe as dystopia—an Orwellian 1984? Can actions or polices now be justified that, if enacted, would finally bring us to what we presently recognize as dystopia? We recognize that such a transition is historically possible, but could it also be consistent with our current principles? On Posner and Vermeule's thesis, the material conditions and practical politics of contemporary liberal society, not the principles embedded within Madisonian institutions and constitutional meanings, prevent a slide toward dystopia.Footnote ⁶⁴ But if nothing constrains necessitous choice—other than the circumstances of the necessity itself within its political context—and if a series of necessitous choices lead away from existing liberal political commitments toward what we presently view as dystopia, then no principled commitments prevent our future selves from choosing such a state. This process seems to present us with a paradox, for a 1984-style dystopia is clearly unacceptable to us now, but the claim is that our own consistent actions could lead us to that future state. Constitutional constraint is supposed to render this outcome impossible without a moment in which the polity exercises its constituent power to choose a very different state.Footnote ⁶⁵ Constitutive transformations, even ruptures, are possible, but the first premise of American constitutionalism is that they must be based on “reflection and choice,” not “accident and force.”Footnote ⁶⁶

Living constitutionalism is not necessarily an evolutionary process of accretionary change, but rather an understanding of existing constitutional commitments that gives them life in present political practices. Change is possible through a series of additions and subtractions from the constitutional canon, altering the commitments on which further self-understandings and interpretations can be based. Constitutional change, on this view, is based on justifications that “take seriously the views of preceding generations,” and requires a liberal polity “to think harder before they revise the constitutional principles affirmed by We the People of yesterday.”Footnote ⁶⁷ A kind of narrative coherence and self-identification with past principles embedded in present commitments defines the identity of this constituent “We the People,” establishing constraints on the coherence and connectedness possible before constitutional transformations become constitutional disconnections. But if necessitous circumstances, not constitutional reflection and choice, become the occasion for constitutive change, then prior commitments can no longer function as constraints on the possibility that altered practices might further a slide into what we at present view as dystopia. For both—the skeptic and the living constitutionalist—change is inevitable, but in the case of living constitutionalism that change is guided by the existence of constraining commitments. But commitments that constrain are exactly what the skeptic denies. So on the skeptical view there is no constraining need to seek fit and coherence with past practice and precedent.

The constitutional skeptic prioritizes democracy over principle, replacing contingent material circumstances, the “accidents and force” of traditional understandings and practices, for rationalized precommitments. Majoritarian politics untethered from deeper commitments provides only contingent circumstantial protections against a slide toward dystopia. But the practice of Madisonian liberal constitutionalism, by contrast, places little faith in the attitudes of officials and the vicissitudes of necessitous political circumstances. Madisonian constitutionalism is about the commitments a polity makes to principles they put into governing practice. Although themselves products of contingent historical circumstances, commitments constrain in ways that go beyond the mechanisms of entrenchment—formal amendment procedures, delaying mechanisms, judicial review, supermajorities, and the like. These mechanisms of entrenchment are external to the attitudes and judgments a governing actor takes as reasons for acting in particular ways rather than others.Footnote ⁶⁸ Once adopted and incorporated, commitments function as constitutive rules and principles that guide governing choices from an internal point of view. The skeptic denies this internal perspective, seeing only the present preferences of majoritarian politics as the constraining guide. For the skeptic, there is no distinction between legal principle and political practice.

These may be two irreconcilable positions. Perhaps there is nothing more to be said to the skeptic, other than reasserting the fact that when engaging in a practice of constitutional self-government, having an internal perspective on the constraints of constitutive rules and principles is what it means to engage in the practice. Rule following, in this way, is constitutive of the practice. But this “nothing more” contains a powerful response. For both empirical and conceptual problems exist for the skeptic.

A situated liberal constitutional polity does not exist through politics alone, absent prior commitments to constitutional principles. Where constitutional government exists, these commitments serve as a common reference from which to construct a sustained political identity and with which to forestall undesirable political outcomes. In this way, constitutive commitments are prior to situated everyday politics. At the same time, political decisions made through the exercise of a people's constituent power establish the existence and force of these constitutive commitments. In the American context, these commitments include those found in constitutional text and its implementation through Supreme Court precedents and congressional statutes. These commitments form a reciprocal relationship between the politics through which constitutional government persists and the constitutionalism through which politics exists.

Perhaps the skeptical claim can be restated as a claim about the priority of politics to principle. Such a claim has similarities with Richard Rorty's argument that democracy is prior to philosophy.Footnote ⁶⁹ According to Rorty, we begin from where we are, situated in practices, with no philosophical account available or needed to undergird the practices. Traditional political philosophy seeks grounding principles for political arrangements, but Rorty eschews such a project, claiming that “liberal democracy can get along without philosophical presuppositions,”Footnote ⁷⁰ for there is no sense “in which liberal democracy ‘needs’ philosophical justification at all.”Footnote ⁷¹ Rather, democracy, as a historically situated and contingent social and political practice, is prior to any foundational grounding the philosopher might seek. The practice of democracy is best understood by John Rawls's argument that no general moral conceptions can undergird a public conception of justice.Footnote ⁷² Deep disagreements cannot be resolved by resort to first principles, for there are no natural justifications that lie outside of the contingent vocabularies “we” happen to inhabit.

Similarly to Rorty's “light-minded aestheticism,”Footnote ⁷³ the constitutional skeptic seems to say that executive administration of law begins from where we are contingently situated in political practice, with no effective check other than politics itself, untroubled by foundational constitutional considerations. But such a skeptical claim says too much. No doubt, we begin with a constituent power embedded always within a narrative, a history, and existing practices. But these are also already infused with norms that guide them. So democracy (practice) cannot be separated from the constitutive norms that inform, or make possible, its implementation. It does not matter that the norms are not grounded on an absolute foundation, remaining vulnerable to historical contingencies. Constitutional transformations are ever-present aspects of constitutional practice. Contingency is not pure happenstance, however, as if the product of “force and accident.” Another way to put this point is that contingency should not be confused with arbitrariness.Footnote ⁷⁴ Rather, constitutional foundations are products of “reflection and choice” on first principles of government and political morality—principles that will guide the development of ordinary law and legal interpretation. The fact of possible deep disagreement in political morality does not entail that the political practices and agreements we do have were not themselves the products of philosophical reflection.Footnote ⁷⁵ In exercising its constituent power, the question of justification for the principles the people adopt is an important element of constitutional founding. In this way, the politics that proceeds from a constituted political order presupposes constitutive norms embedded in foundational principles, and in the case of written constitutions, a foundational text. However, what we must insist on is that these “foundational principles” are not self-evident axioms. Instead, they are more akin to what Rawls calls “considered judgments” that when clarified and systematized become a political philosophy.Footnote ⁷⁶

If politics already incorporates constitutional norms, then claims about the priority of democracy to constitutional principle are confused. Rather than priorities, we find normative practices subject to critique in which contestation over following constitutive rules might arise, not as skeptical challenges to the efficacy of rules in political life, but as embedded contestations over particular rule applications.

If “philosophy” stands for an exercise in seeking foundational justifications, as if everyday political practices need justification from an external grounding, then Rorty's antifoundationalist understanding has traction. Constitutional practices are foundational in the sense that they ground a political body, a “We the People” who give specific legal form to their political aspirations by exercising their constituent power to construct a legal framework. Constitutional law becomes foundational law within a polity, establishing the people's most fundamental values and principles, in addition to their organizing institutional structures, beyond the reach of ordinary politics. If asked to further justify this foundation, the people cannot point to transcendent principles that necessarily entail the institutional structures and constitutional principles they have adopted. In this sense, constitutional foundations are historically contingent, and open to further transformations through refined and reconstructed visions of political identity. They are always open to new “constitutional moments”Footnote ⁷⁷ capable of bringing about new constitutional orders. Although liberal skeptics like Kahn are right that the exercise of constituent power produces decisions that precede the specific form constitutional norms might take, it remains the case that constituent power is exercised on behalf of some values, purposes, and norms.

If, however, the argument is that we have no justifications to offer for our constitutive commitments other than the facts of our historical enlightenment accident from which we might seek ways to find overlapping political consensus guided by Rawlsian procedures, then Rorty's argument, and its skeptical analogue, must fail.Footnote ⁷⁸ The absence of absolute foundations does not mean that the political decisions that establish a constitution are ungrounded by normative justifications. A constitutive element of constitutional formation is the justificatory discourse offered on its behalf.Footnote ⁷⁹ The Federalist Papers, for example, were offered as public justifications for adopting what became the American Constitution of 1789. What the justificatory discourse reveals is that political compromises made in structuring a polity were themselves further grounded in prior agreements on values and principles believed vital to self-government. Rather than “accident and force” forming the contingent circumstances in which Rorty's “we moderns” happen to “put liberty ahead of perfection,”Footnote ⁸⁰ or in which “we heirs of the Enlightenment” take the constitutional democracy we have inherited seriously as “determined by our upbringing, our historical situation”Footnote ⁸¹ in which we happen to find ourselves, we instead find practices of justification based on “reflection and choice.”

If normative principles are constitutive of political practice, then politics cannot be prior to constitutional principle. And if political practice is not prior to constitutional principle, it becomes difficult to make sense of a position in which politics is unconstrained by the constitutive values and principles that both make it intelligible and give it meaning. On this understanding, we cannot view constitutive rules and commitments as subject to external reevaluation by those actors who act within the practices the rules in part constitute. Problem cases do not require reconsideration of the norms of the practice from some extrapractical (extralegal) perspective. To seek such a freedom to reconsider the rule misconceives the nature of the practice by ignoring the internal perspective. This perspective is not immune to critique by being “internal.” But the nature of the critique is not simply one of interests or preferences of political majorities free to reconsider the practice independent from the values it embeds and promotes. Rather, critique must be made in terms of these values.

The value-laden nature of the practice in this way operates as a constraint on politics and on the executive actor who would claim that in this case, “necessity knows no law.” He is not free to reconsider the relation between rules and practices in particular cases, for to do so is, again, to misconceive the nature of rules and practices as lacking an internal perspective.Footnote ⁸² To keep the question of whether rules should be followed open is to demonstrate that one does not accept legal rules either as binding or as making intelligible the governing practices they in part constitute.Footnote ⁸³ We can't do democracy without doing philosophy. The latter helps us understand the rules and concepts constitutive of the practice of self-government. Likewise, we can't do politics without considering constitutional principle. The latter makes the former possible. In this way, it is a pointless question to ask or claim the one has absolute priority over the other. Similarly, it is confused to claim that politics will take care of tyranny without the guiding constraint of constitutional principle. That is, of course, provided one accepts at minimum that we are playing the “game” of liberal constitutionalism, whether straightforwardly, skeptically, or cynically. That democratic principles would not appeal to O'Brien, the state's interrogator in 1984, does not mean that they are “hanging loose.” After all those who make the skeptical argument are doing so themselves from a democratic perspective and so it would be a mistake to believe that the burden of proof is set by the O'Briens of the world.

It is worth clarifying that the source of the external rule skepticism at issue here is not one that is derived from the “open texture” of legal prescriptions, or from vague delegations by legislatures to presidential administrations. The claim here might be that even if we cannot conceive of political practice in a liberal constitutional democracy apart from the existence of constraining constitutive commitments, it might be the case that the content of these commitments is open to interpretation in such a way as to provide no meaningful constraint. It would be possible through an accretionary process of interpretation to achieve radical changes in constitutional orders. The distance between the world of Plessy v. Ferguson,Footnote ⁸⁴ which gave foundation for Jim Crow, and the world of Brown v. Board of Education,Footnote ⁸⁵ which grounds a principle of desegregated equality, is vast in its social and political implications, and achieved entirely through constitutional (re)interpretation.Footnote ⁸⁶ If interpretation is so malleable as to produce such different sociopolitical orders, the skeptic can argue that political changes—not constitutive constraints and principles—are doing all the work. Moreover, the “open texture” of constitutional text is capable of pliable interpretation in such a way, the skeptic might argue, as to make possible descent into practices that we might presently reject, or even view as dystopian.Footnote ⁸⁷

Such a skeptical position—that the process of interpretation is incapable of providing “right” answers—produces what Ronald Dworkin identifies as internal skepticism, or “skepticism within the enterprise of interpretation” in law.Footnote ⁸⁸ When there is deep disagreement over legal interpretations, skepticism about an area of law is “a substantive position about the best interpretation of some practice.”Footnote ⁸⁹ In this way, one might call into question a legal practice from an internal point of view, arguing that there are no right answers to the best interpretation of the practice. Interpretations matter to an account of law because, for Dworkin, law is fundamentally an interpretive practice that seeks “to make the object or practice being interpreted the best it can be.”Footnote ⁹⁰ If interpretive endeavors fail, we might confront an internal skepticism that “relies on the soundness of a general interpretive attitude to call into question all possible interpretations of a particular object of interpretation.”Footnote ⁹¹ In other words, internal skepticism might agree that there are ordinary cases of contested rule applications, but also assert that there are legal practices about which there are no best answers because the nature of the practice will not yield them. So, for example, to a question about the scope of presidential power to conduct warrantless electronic surveillance of Americans communicating to individuals abroad, as a claimed incident to ongoing armed conflict with al-Qaeda affiliates and successors, the internal skeptic might argue that there are no “best answers” to be constitutionally derived. To this skeptic, the issue is not simply the “open texture” of legal language, but also the absence of discernible standards to apply. If there are no internal standards to adjudicate the best interpretive answer regarding the scope of presidential powers, on this view it would follow that the president should be granted unreviewable authority to do what he deems best to protect national security.

If such skepticism arises from a perspective internal to liberal constitutionalism, then it accepts that constitutional rules and principles would be sources of guidance but for the lack of standards to adjudicate between competing views of their scope—one pertaining to executive power, for instance. Dworkin distinguishes such internal skepticism from an untenable global external skepticism that purports to stand outside all legal practice, claiming that there are no right answers to rule following or interpretation because no answer has the grounds to establish its own authority. Because such a view is a challenge to the status of all legal claims, not merely the ability of liberal constitutionalism to constrain executive claims to act as necessary irrespective of applicable legal rules, it need not distract from the more challenging internal version. In this way such external skepticism has no practical effects for legal practitioners tasked with understanding and applying the law.

In arguing that all claims to rule skepticism either are claims about contested rule applications or are expressions of rule cynicism, we address the skeptical challenge that executive officials, or other government actors, feel unconstrained by accepted legal norms and understandings. One need not adopt Dworkin's version of an interpretive attitude, nor his judge-centric interpretive method, to defend liberal constitutionalism as requiring officials to adopt an internal commitment to constitutive norms no matter how those norms are ordered. Even absent the availability of judicial review, the skeptic argues that applicable rules and principles are incapable of constraining no matter the interpretation.

For purposes of our argument, law need not wait to be articulated in its “best light” by a suitably enlightened common law judge, but rather requires an everyday “muddling through” in light of the principles we prioritize and the practices both precedent and purpose make available. In this way, the point is not simply that there are constitutional principles amenable to further interpretive rearticulation, but that those principles are connected to practices constituted in part by the commitments they entail.

A practice of engaging in armed conflict in light of commitments to jus in bello principles, for example, need not involve legal interpretations of the kind Dworkin envisages, even as they require contested applications. When it comes, for example, to justifications for targeting specific individuals to be killed under claims of national security necessity, Jeremy Waldron argues that our attitudes and commitments to moral and legal norms against killing are essential to the shape of—and possibility of constraining—a practice of targeted killing. How such norms get applied “will depend largely on the attitude towards killing revealed in the reasoning we use.”Footnote ⁹² Something similar could be said for the norms against torture. Both practices—targeted killing and torture—have been contested features of U.S. counterterrorism policy that implicate deeper attitudes and commitments to norms and principles prior to any question of how best to justify them.Footnote ⁹³ President Obama's executive order upon taking office in 2009 forbidding torture across all U.S. agencies and personnel is vulnerable to rescission subject to the attitudes and views prevailing in a changing administration.Footnote ⁹⁴ In March 2017, a draft order was made public in which President Trump proposed such a rescission.Footnote ⁹⁵

The skeptic urges that there is no right answer, and thus the president can do whatever he deems is necessary to protect national security. But given the fact that those engaged in the practice of both implementing and justifying counterterrorism policy rely on legal rules and principles—as seemingly malleable as these may at times be—the skeptic's position is really that of a cynic. The rule cynic exploits the pretense of following constitutional principles to justify acts taken free from any internalized conception of rule or principle. Such actions do not occur in isolation from others, nor from the possibility of changing constitutive values, priorities, and structures. As Justice Jackson admonished regarding the assertion of presidential war powers into the domestic sphere: “The tendency is strong to emphasize transient results upon policies . . . and lose sight of enduring consequences upon the balanced power structure of our Republic.”Footnote ⁹⁶ It is these enduring consequences that matter for changing administrative practice and priorities. Public opinion, as well as the sentiment of both governing officials and jurists, “often suffer[s] the infirmity of confusing the issue of a power's validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant.”Footnote ⁹⁷

To return to the problem Rorty introduces, to the question whether constitutional principle or politics have priority, our response is that they are mutually informing. Importantly, one implication is that these commitments to background principles make possible a normative order in which particular practices have meaning and through which citizens and courts can evaluate not only the legality, but also the propriety of actions and policies. A commitment to the prohibition against killing, for example, informs a background attitude out of which practices emerge and rules are applied. The danger, as Waldron warns, of loosening our commitment to this principle is that it makes killing more acceptable in more situations in a way that prioritizes what Justice Jackson identifies as “transient results upon policies” while losing “sight of enduring consequences” that follow from changing the polity's norms.Footnote ⁹⁸

One response to the question of priority serves a skeptical purpose by making it seem possible that liberal politics could function apart from its principles and commitments. The skeptic's argument is that during emergency moments legal rules do not determine what the sovereign, or executive official, is to do. Political necessities are prior to and independent of constitutive principles. On this view, whatever the sovereign does is ipso facto “correct” since the rules of the “game” allow it. In this way, necessity is said to know no law. So the conclusion is that constitutional rules do not determine anything at such a pivotal moment and thus leave the sovereign decider free to act free from constraint. In addition to misunderstanding the relation between politics and principles, we believe that the skeptic misunderstands how rules work. Wittgenstein's account of rule following, to which we briefly turn, provides a way to make the case. A proper understanding of rule following will show us that the sovereign's decisions are not undetermined by legal rules. What then is Wittgenstein's account?Footnote ⁹⁹

IV. WITTGENSTEIN ON RULES

What underlies how rules determine action? Rules are grounded in what Wittgenstein calls the common behavior of mankind.Footnote ¹⁰⁰ Without the de facto sameness of response shared with others who are also participants in the practice, there could be no normative claim about “what ought to be done” that would accord with a rule. Wittgenstein's focus is often on the process by which a person might be trained to follow a rule. As he suggests, persons in fact respond to the encouragement of others in particular ways that we call “training” that have the effect of producing sameness of reaction. What makes sameness of response possible is that the trainee shares with the trainer background capabilities and beliefs, and comes to understand the aims of the practice and the means by which those aims are to be achieved through application of the rules that help define the practice. To have different aims pursued through alternative means is to engage in a practice governed and guided by different rules. Rules do not mandate their own application. But they do presuppose the ability to coordinate responses in a way that means we understand correct and incorrect applications. According to Wittgenstein, what precedes normative principles is deep de facto sameness, such that “[t]o imagine a language means to imagine a form of life.”Footnote ¹⁰¹ We cannot abstract our rules from the background practices in which they make sense and we cannot abstract those practices from facts about who we are such that we could agree on normative judgments about whether a practice is properly executed. So when Wittgenstein comments that “[t]o understand a sentence means to understand a language. To understand a language means to master a technique,”Footnote ¹⁰² he tethers the question about following rules to background conditions of shared language use and practical capabilities.

In Philosophical Investigations Section 201, Wittgenstein says, “this was our paradox: no course of action could be determined by a rule, because every course of action can be made out to accord with the rule.” He continues: “the answer was: if everything can be made out to accord with the rule, then it can also be made out to conflict with it. And so there would be neither accord nor conflict here.” This passage has been interpreted by some to imply a fundamental level of skepticism. At the deepest level, nothing determines what we are to do. There is no determination because we can do anything or nothing and “make” that accord with the rule.Footnote ¹⁰³ But Wittgenstein rejects this sort of position. It is not a matter of coming up with a new interpretation of a rule in terms of which what we have done “accords” with it or does not. In actual practice there is “a way of grasping a rule which is not an interpretation but which is exhibited in what we call ‘obeying the rule’ and ‘going against it’ in actual cases.”Footnote ¹⁰⁴ The way out of the paradox is to recognize the de facto existence of agreement in judgments about what to do next that originate in shared practices that constitute in a broader sense, what he calls a “form of life.”

Sharing a form of life, however, does not ensure against deep disagreement. And the possibility of disagreement in practice is the opening the skeptic needs to say that the general account of rules falters in the particular case, exceptional or otherwise. Wittgenstein's response is to consider a numerical series such as 1, 3, 5, 7 . . . What is the next item in the series? The answer is that given a sequence of numbers any number may be the next in the series depending on what the determining principle is. As Wittgenstein asks “But how can a rule shew me what I have to do at this point? Whatever I do is, on some interpretation, in accord with the rule.”Footnote ¹⁰⁵ We can construct a formula post hoc that would serve as an ex ante justification for a great many responses. The legal realist skepticism of legal rules and the judge's ability to provide post hoc justification as if it were ex ante determined should seem a close parallel here. But, according to Wittgenstein, claiming that an interpretation tells us whether we follow a rule is the wrong response. Rules cannot be given the power to determine the steps by an interpretation because that would presuppose that the interpretation has the power to determine and, of course, the question immediately arises “How can an interpretation show me what I am to do at this point?” The same problem arises at the next level and so “interpretations by themselves do not determine meaning.”Footnote ¹⁰⁶

The way out of this skeptical miasma for Wittgenstein begins by asking “[w]hat sort of connexion is there here? Well, perhaps this one: I have been trained to react to this sign in this particular way.”Footnote ¹⁰⁷ This response may seem to lead in the direction of some form of mechanical determination but Wittgenstein rejects this account saying, “I have further indicated that a person goes by a sign-post only in so far as there exists a regular use of sign-posts, a custom.”Footnote ¹⁰⁸ Again we see that there must be a de facto “What is done in this sort of case” for there to be a what ought to be done. Just as it is true that a machine can symbolize its movements only because there is a regular way it behaves, so also there must be something that is done under these conditions for there to be a claim about what ought to be done. As Wittgenstein suggests, “What this shews is that there is a way of grasping a rule which is not an interpretation, but which is exhibited in what we call ‘obeying the rule’ and ‘going against it’”Footnote ¹⁰⁹ in actual cases.

Rule following presupposes a context, a practice in which it is understood. Rules do not stand alone. There is what is normally done that forms the basis for what is supposed to be done. Thus obeying the rule must be seen in the context of a practice—of a doing and sharing in the same thing. If anything or nothing counted, the “rule” would determine nothing. But then we could not talk of sharing a particular practice either.

So Wittgenstein is no skeptic about rules, but he does uncover the assumption that would underlie skepticism. It is only by believing that a rule can determine what accords with it independent of a larger practice and context that rule skepticism becomes possible. On Wittgenstein's account, by contrast, the open texture of rules is in part closed by there being a fact of “what it is to go by the rule or against it in actual cases” measured by actual social practices and commitments. The assumption that makes rule skepticism seem attractive is that a particular rule can be isolated and analyzed without reference to the practices and institutional settings in which it functions. Normative contextualism not only explains how rules can guide actions without determining them, but also shows how particular rules are interwoven with a family of others sharing similar purposes and committed to similar principles. In this way, the rule skeptic has radically misconceived the supposed openness of constitutional rules. Of course a rule if considered in isolation from its context determines nothing. But such skepticism offers an incomplete description of how constitutional rules might apply to unforeseen circumstances. When an executive official identifies a situation as an emergency supposedly requiring some unprecedented action to be taken, the correctness of the action must be judged against the background of the overall practice into which it fits. The “sovereign” is not free to do just anything, at least on the basis of the claimed openness of constitutive rules that fail to determine appropriate actions. Executive officials must act in light of the practices and commitments that constitute a liberal constitutional democracy.

V. SKEPTICAL FAILURE INSIDE AND OUT

This imperative that executive officials cannot step outside of a constitutive background to decide on a course of action is not a rule but instead arises from a web of commitments and constraints that both provides a source of justification and forms a principled limit to appropriate actions. In the sort of situation we are considering, even though there is no narrowly conceived rule that determines action, a larger background web of commitment remains in place and constrains legitimate action. So while doing “what is necessary to preserve. . .” might seem to allow the skeptical nonconstraint view back in, it does not. “What is necessary” can only be understood to encompass “necessary” means in light of the whole web of background principles and values to which we are committed that both empower and constrain. And while doubt about how to proceed will not be eliminated, there will be no question of whether constitutional principles apply or which commitments require adherence. In short, there is no possibility of a skeptical reduction of rules to sovereign decisions.

In fact, the claim that the sovereign “must do what is necessary to protect the state” is ambiguous in a way that makes it seem far more acceptable than it really is. It implicitly contains the caveat that we articulate above. The assumption is that the sovereign is operating within the “whole web of background principles and values,” but the skeptic ignores that background and thus by using that same form of words seems to present the sovereign as acting without constraint. No one believes that executive officials have the authority to sit as justices of the Supreme Court, for example, despite the presence of necessitous circumstances. In a deep sense, therefore, the skeptic is not a philosophical skeptic who thinks that in the final analysis nothing is determined and everything is possible. Rather, rule skepticism is a limited ruse to give substance to a claim of unconstrained authority that is otherwise clearly unacceptable. Such rule skepticism is in this way indistinguishable from rule cynicism. Skeptical decisionism fails to account for the fact that what constrains the sovereign is the whole weight of our commitments.

These normative and constitutive commitments need not take the form of precommitment devices. Precommitments attempt to tie our hands, making unavailable particular options much as Ulysses bound himself to his prior commitment not to heed the sirens’ call.Footnote ¹¹⁰ By contrast, commitments can also be constitutive of self-governing practices.Footnote ¹¹¹ A polity agrees to abide by particular normative constraints that constitute the rules of the “game,” the rules constituting liberal constitutional self-government. A polity could adopt different practices. But so long as a polity purports to govern through practices of liberal constitutionalism, then these commitments are constitutive of those practices in a way that forecloses skepticism about their general applicability, even if at times uncertainty arises regarding their specific application.

So when a rule skeptic advocates that necessitous circumstances could justify actions “strictly from the necessity of the circumstances and not under the direction of any rules or authorizations,”Footnote ¹¹² the mistake is to think that the absence of a specific rule determination implies the absence of all other normative constraints. For one, the thought that the “necessity of the circumstances” is itself an unmediated imperative is clearly false. The “necessity of the circumstances” is itself an interpretive concept that requires judgments in light of background normative commitments that make it possible to understand the nature of the circumstances and to ascertain what might be necessary. And for another, the “necessity of the circumstances” functions itself as a rule, open to the same kind of rule skepticism purporting to be a source of decisionist freedom. Rather than freedom, the skeptic is even more tightly constrained by the necessitous circumstances. Thus, it is clearly false, or incoherent, to claim that “a judgment that some rule is inapplicable is not one that is guided by rules; it is simply made without the guidance of rules.”Footnote ¹¹³

The error with such a view is twofold. First, it seems to suggest that there must be a regress of rules—that there must be a rule for how to follow a rule, and so forth. But as the brief appeal to Wittgenstein makes clear, such a skeptical regress is not warranted because rules bottom out in practices and normative commitments, not in further rules. Second, this latter grounding undercuts the claim that circumstances justify actions unmoored from guidance by any “authorization,” for the principled commitments themselves provide guidance, without which responses to necessity would be simply arbitrary. In this way, there is no stepping outside of the constitutive norms and constraints that constitute the rules of liberal constitutional practice. Or, to do so is to engage in a different form of governance, to play a different “game.” Nothing in the nature of liberal constitutionalism forecloses the choice to adopt a different system of governance. But so long as this transformative step is untaken, then norms internal to the constitutional order continue to apply.

Even if the claim is that there is a meta-rule of constitutional necessity that realigns the distribution of powers, providing new occasions for the exercise of executive authority and a diminished role for judicial checks, a constitutional rule continues to function within a web of other liberal constitutional practices.Footnote ¹¹⁴ In a case like Korematsu v. United States, which in the American constitutional tradition often serves as an example of executive overreach and judicial failure, executive officials urging that military necessity required the exclusion of Japanese Americans from the west coast did not argue that no constitutional constraints governed how those detained could be treated.Footnote ¹¹⁵ Actions taken in the name of national security now recognized as constitutional violations were justified at the time by contested rule applications, not the absence of rules. Executive reliance on “military necessity” justifications sought to alter the application of constitutional rules in light of the specific circumstantial need, creating the problem with a judicial opinion legitimating the practice that Justice Jackson identified as requiring a kind of constitutional forbearance: “[I]f we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient.”Footnote ¹¹⁶ Justice Jackson's worry is that military necessity might either be ungoverned by constitutional principles or itself become the determiner of constitutional meaning. What we find instead is a constitutional contestation over the scope of rules and the limits of executive power that are anything but skeptical of the relevance of constitutional principles and practices. Executive officials may contest specific rule applications, but not the general applicability of constitutional norms. Moreover, as we argue, neither the absence of judicial checks in cases like Korematsu nor the presence of judicial resistance to President Bush's counterterrorism detention practices in cases like Hamdi v. Rumsfeld and Hamdan v. Rumsfeld resolve whether contested rule applications give rise to skepticism.

The liberal constitutional skeptic argues that judicial failure to intervene in such cases means that during emergencies, courts will not stand in the way, undermining the claim that executive decisions are bound by constitutional rules and principles. Scholars such as Eric Posner and Adrian Vermeule argue in addition that courts should not intervene because they lack the expertise.Footnote ¹¹⁷ The issue Justice Jackson highlights is that if a practice violates an existing principle, one should hesitate to alter the principle to conform to the practice rather than let the practice remain a violation of the rule. Either choice will have effects on constitutional practice and meaning. Judicial forbearance, however, encourages constitutional questions to be answered through public justifications. But in neither case is rule skepticism at issue, even if at times the rhetoric of necessity cynically makes it seem as if rule skepticism is a viable position. In the latter case, leaving rule violations as rule violations makes clear that the whole web of background principles and values remains in effect. It also acknowledges that constitutional rules and principles cannot compel official commitment and fidelity. This absence of compulsion, or correlatively, the presence of discretion and will, has additional analytic consequences.

If neo-Schmittianism is predicated on the absence of judicial checks to support rule skepticism then it relies on a mistaken understanding of the internal role constitutional commitments and constraints play. Rule violations can elicit both normative and institutional responses, each of which are capable of revealing cynicism masquerading as skepticism. Normative claims circulate not only among critics of executive policy, but also in presidential conceptualizations of the relation between principles and practices. For example, in defending two NSA surveillance programs—one collecting bulk metadata of all Americans, and the other targeting foreign individuals who may be communicating with Americans—President Obama acknowledged that when choosing counterterrorism policies, “the very liberties that we sought to preserve could not be sacrificed at the altar of national security.”Footnote ¹¹⁸ Moreover, “Our system of government is built on the premise that our liberty cannot depend on the good intentions of those in power; it depends on the law to constrain those in power.”Footnote ¹¹⁹ Fulfilling a duty “to both defend our nation and uphold our civil liberties”Footnote ¹²⁰ requires commitment to principles and values that constitute “our system of government.” Normative commitments, therefore, factor into an analysis and choice of proper counterterrorism policy in a way that captures Chief Justice Marshall's aspiration that both the letter and “spirit” of the law would be fulfilled through government action.Footnote ¹²¹ These normative commitments are both constitutive of a shared constitutional order and chosen. President Obama could choose to emphasize other values, or none. But the choice to give particular salience to protecting liberty and constraining executive power is possible because these values define in part the constitutional order in which he acts.

A skeptical response might urge that this example reveals cynicism, not constitutionalism, because the president can deploy such magniloquent language without any actual commitment to the substance. In this response we reach the nub, for it is true that nothing compels sincere commitment to constitutional principles. But that is not a failure of liberal constitutional principles, but a failure of will. Such failure is possible not simply because law cannot compel its own commitments, but because politics is not independent of constitutional considerations. The cynical position merely accepts different implications for what Justice Jackson called the “enduring consequences upon the balanced power structure of our Republic.”Footnote ¹²² The cynic does not view the possibility of enduring consequences as reason for caution, because to do so would presuppose an internal perspective in which constitutional principles and structures mattered to choice of action. For to incorporate constitutional norms and consequences into a calculation of best practices and policies is to be neither a cynic nor a putative skeptic. The cynic, by contrast, makes choices about practices without regard to constitutional norms, especially where they are unlikely to generate justiciable issues or calls for congressional oversight.

When, however, executive officials act cynically, motivated by considerations lacking constitutional commitments, while other institutional actors remain constitutionally committed, the possibility for asymmetrical aggrandizement is possible. Under the Madisonian account of checks and balances, identification of individual ambitions with the interests of their respective institutions produces competition that avoids aggrandizement, prevents tyranny, and protects liberty.Footnote ¹²³ If the attachments between person and office are not as strong as other priorities such as partisan identification, then the Madisonian framework breaks down, producing the possibility for asymmetrical attachments—some actors will be more willing to check executive power, for example, than others.Footnote ¹²⁴ A partisan Congress aligned with the president, for example, may not be willing to conduct robust oversight. This gap between the commitments of others and an executive's own extraconstitutional motivations makes possible cynical exploitation of constitutional practices. And this possibility for asymmetrical aggrandizement would seem to invite rule skepticism. The rules said to form a background against which judgments about governing policy and practice are made are subject to cynical manipulation by an executive uncommitted to the internal norms of the constitutional order. The twin problems of judicial inconstancy or unavailability only serve to exacerbate the problem.

Because cynicism exploits the rule of law commitments of others, it can utilize constitutional argument through insincere appeals to constitutional values—as the skeptical response to President Obama's speeches would argue. Cynical appeal to constitutional principles can coexist with claims that liberty must be balanced against security in a way that gives priority to claims of national security. In this way, claims to episodic necessity, as we have seen, arise to avoid the constraints other constitutional commitments might impose. Liberal constitutionalism's proper response to insincere argumentation, like its response to ordinary constitutional claims, is to contest constitutional argument with constitutional argument. The hope is that insincere constitutional veneer will wear thin through repeated contestation, revealing an underlying absence of constitutional commitment.Footnote ¹²⁵

One upshot of this asymmetry is that because of the pervasive possibility of cynicism, institutional actors committed to constitutional values should be hesitant to defer to other actors in a position to exploit constitutional asymmetry. To the extent that counterterrorism and national security policies are ripe with claims of executive expertise—and prerogative—judicial minimalism would be unwarranted as a matter of constitutional principle and practice. The assumption that when it comes to matters of security courts and other actors should defer to executive claims is based on a belief that such claims are sincerely made and that the balance of liberty and security weighs against constitutional rights limitations. As Professors Eric Posner and Adrian Vermeule argue, when it comes to constitutional challenges to national security policy, federal judges “are amateurs playing at security policy, and there is no reason to expect that courts can improve upon the government's emergency policies in any systematic way.”Footnote ¹²⁶ Such a view could only be plausible under the assumption that a president will make a noncynical claims to national security's priority over liberty. And even then, it is unclear why a court should ever defer to executive claims about the effects of policy on individual liberty.Footnote ¹²⁷ Of course, the prospect of cynical or partisan deployment of judicial review to further aggrandize presidential power, or even to aggrandize judicial power, is always possible as well.Footnote ¹²⁸

If everyone were a cynic, then liberal constitutionalism would be impossible, for governance would be a matter of competing claims to episodic necessity unmediated by constitutive commitments and principles.Footnote ¹²⁹ If there were such extreme asymmetrical attachment to constitutional norms, then if constitutional governance is not to be a ruse by which self-interested officials take actions irrespective of constitutional norms and values, then normative commitments have to matter from the inside often enough to make possible the contrast between commitment and cynicism. Thus, either cynicism undoes liberal constitutionalism because there are no sincere constitutional commitments, or constitutional commitments are effective in organizing an internal perspective often enough to maintain a distinction. If the latter conjunct is true, then the presence of cynical actors does not challenge the constitutional order unless enough actors fail to sustain commitment to principles and norms from the inside.Footnote ¹³⁰ If the former conjunct is true, then there can be no constitutional order. Like the general features of any rule-governed activity—playing a game, as we observed through Wittgenstein's thought—one can play by different rules, but one cannot play by different rules and play the same game. If constitutional commitments do not inform the larger social imaginary of citizens and officials alike, creating a common set of concepts and principles to shape competing conceptualizations of the normative order's practices and their applications, then of course liberal constitutionalism could not persist.Footnote ¹³¹ But Madisonian constitutionalism contemplates that “enlightened statesman will not always be at the helm,”Footnote ¹³² not that they never will be—implying that some commitment to the enlightenment values that animate the constitutional order is necessary.Footnote ¹³³

Although normative considerations of the kind reflected in President Obama's speech have a force of their own, capable of guiding discretionary governing choices and practices, they can also be central to structural and institutional constraints. Different administrations will ordinarily make policy decisions that have both constitutional bases and effects from a position somewhere between the “no commitment” cynical view, and the “complete commitment” ideal view. Interplay among assertions of executive power, public criticism, and judicial review serves as an institutional constraint on normative content. Decisions to discriminate on the basis of religion, to revive torture and “harsh” interrogation techniques, or to expand a policy of targeted killing using unmanned aerial drones, for example, can each be institutionally and publicly contested for their coherence and fit with constitutional and legal norms.Footnote ¹³⁴ When courts forbear, then public discourse is often the way a constitutional order contests cynical claims. Changing administrations make possible not simply the changing of ordinary policy priorities, but changing commitments to principle. The latter are what need public justification, and about which other institutions charged with providing Madisonian checks should be hesitant to defer.

Overreliance on the judiciary as a solution to the skeptical challenge risks committing what Professors Eric Posner and Adrian Vermeuele diagnose as the “inside/outside fallacy,” which occurs “when the theorist equivocates between the external standpoint of an analyst of the constitutional order . . . and the internal standpoint of an actor within the system.”Footnote ¹³⁵ If presidents can behave cynically, then so too can judges. When theorists from an external perspective diagnose a problem with the incentives and motivations of institutional actors as misaligned with the public interest, it is inconsistent, Posner and Vermeule argue, to abandon the diagnostics and urge other actors inside the system to be more public spirited.Footnote ¹³⁶ Thinking that the presence of judicial review (or other institutional checks) resolves the skeptical challenge puts too much confidence in the public-mindedness of judges (or members of Congress). The danger for our own analysis is that having identified the possibility of cynical attitudes toward constitutional rules, our normative prescription is one of constitutional faith—continuing a constitutional conversation through public discourse and argumentation through which constitutional principles and norms remain salient.Footnote ¹³⁷

We avoid the “inside/outside fallacy” because we argue for the conceptual and practical coherence of the antiskeptical and anticynical view. The challenge is that the presence of cynical executive actors coupled with judicial deference might unravel a constitutional order. And in part, we have no response to this challenge, because it relies on the open possibility of cynical actors wreaking permanent constitutional change through exertions of will. But in more significant part, our response is to argue that the use of this possibility to justify skepticism is really a form of cynicism masquerading as skepticism. For from the fact that an unenlightened statesman might be at the helm it does not follow that constitutional norms cease to circulate through public discourse, nor that other institutional actors—as conflicted and complicated as their allegiances might at times be—cease to view their roles as at least in part internally constituted by constitutional commitments. Our more limited claim is that to the extent that constitutional skeptics deny the role of constitutional principles and rules as constraining executive action, their view rests on a fundamental confusion.

Our point is a theoretical one vital to constitutional practice: the presence of constitutional skepticism masks an underlying cynicism that has the potential to create enduring constitutional effects without the ordinary “reflection and choice” that ground American constitutional transformations.Footnote ¹³⁸ Because every claim about the use of presidential power will have inside effects even if a president fails to consider them, such claims will therefore be indistinguishable from inside claims. Cynicism thus results when the rules are not effective or salient in a conception of what one is doing from inside a constitutional order ex ante, but have effects and salience inside the system ex post because such decisions establish precedents and practices. In Justice Jackson's famous phrasing, a cynical claim can create a future “principle [that] then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”Footnote ¹³⁹ The harm of cynicism is that the “enduring consequences” for the system cannot be avoided. A noninternal perspective exists when policies and actions are chosen in response to episodic necessity in a way that does not incorporate background legal and constitutional principles, values, and precedents. Skepticism about the ability of “parchment barriers” to constrain in this way is really cynicism about the status of internal commitments to constitutional principles.Footnote ¹⁴⁰ Because commitment is a matter of choice, and choice is enabled by reflection that incorporates constitutional considerations, the fragility of constitutionalism is a matter of the attitudes of those who inhabit governing institutions, not the structure and institutions of liberal constitutionalism themselves.Footnote ¹⁴¹ But the structure of overlapping and competing institutions—even if the Madisonian premise of office and occupant identification fails—creates multiple venues for the discussion and realization of constitutional constraints against cynical manipulation of executive powers.

If constitutionalism could be undone by pervasive cynicism, then Madisonian constitutionalism is internally insufficient. Even if the identity between office and occupant does not exist in the way that Madison envisioned in Federalist 51, the availability of multiple overlapping and competing institutions creates the platforms through which internal commitment and constitutional argumentation can occur, even if imperfectly and inconsistently. The challenge for the cynic, no less than the challenge for a change in administration with contrary constitutive visions, is to succeed in argumentation against multiple, competing institutional actors who do have internal commitments to the norms of the constitutional order, even if these norms have continuing contested applications in practice. So when Justice Jackson warns against giving constitutional status to nonconstitutional claims, as he does in Korematsu, he aims to keep open the multiple sources of constitutional accountability capable of resisting cynical assertions of constitutional authority that may not exist with a judicial imprimatur.Footnote ¹⁴²