43 Pages Posted: 18 Feb 2021
Date Written: February 1, 2021
For all the celebrated brilliance of the Framers, the Constitution betrays deep moral failings we would never countenance today. These failings, such as the original Constitution’s overt racism and abidance of slavery, made their way into the document because the drafters and ratifiers represented a narrow, privileged, homogeneous slice of the American population. The Framing excluded others—such as women, racial minorities, and those with fewer assets—due to their diminished social station. This bare fact is profoundly troubling, yet in some respects irremediable. Its implications are also surprisingly evasive. Some feminist and critical race scholars have highlighted the problem of constitutional exclusion in powerful fashion. Constitutional scholars have typically interpreted (and rejected) that objection as a challenge to the democratic or popular legitimacy of the Constitution, or as a general, perhaps amorphous concern that the Framing “contaminated” the Constitution or otherwise alienates systemically disadvantaged groups.
This Article offers a novel, broad and consequential interpretation of the problem of constitutional exclusion. It argues that concern about exclusion is, first and foremost, a concern about inequality, and more specifically a concern about the preclusion of racial minorities, women, and less wealthy Americans, as moral inferiors, from playing a role in laying the legal and political cornerstones of our Republic. Inequalities reinforced through subsequent constitutional adjudication—and the substantive disadvantages that persist in the life outcomes of members of excluded groups—take on a particularly sharp form when understood as compounding constitutional exclusion. Reframing the problem in this way reveals the basis for its persistence.
Understood as a problem of inequality, constitutional exclusion also highlights a commonly shared but generally hidden assumption: that the law—and the Constitution in particular—should inspire us morally. This hidden assumption about law’s moral role is a central feature of virtue jurisprudence, a burgeoning theoretical approach that analyzes the law primarily in terms of its relationship to the individual virtues (like courage and wisdom) of those it governs. The Article thus argues that our increasing recognition of the significance of constitutional exclusion, once properly defined, betrays an underappreciated affinity for virtue jurisprudence.
Finally, the Article illuminates how exclusion-as-inequality poses an especially serious challenge to originalism, particularly when viewed through the lens of virtue jurisprudence. Originalism urges the resolution of constitutional questions by appeal to a temporally-fixed, original understanding of the Constitution, and it is the preferred methodology of a significant proportion of the federal judiciary. It is therefore a prominent approach that seeks to entrench rather than jettison certain inequalities embedded in the Constitution, sapping the power of the Constitution to model virtue for the public. The tension between virtue jurisprudence and originalism is of significant theoretical importance because virtue jurisprudence is especially popular among scholars with originalist inclinations. Scholars drawn both to originalism and to virtue jurisprudence therefore face a serious dilemma concerning which to select.
Keywords: Virtue Ethics, Virtue Jurisprudence, Originalism, Non-Originalism, Constitution, Exclusion, Race, Sex, Inequality, Equality
JEL Classification: K10, K19, K30, K39
Suggested Citation: Suggested Citation