THE SUPREME COURT 2006 TERM FOREWORD: CONSTITUTIONS AND CAPABILITIES: “PERCEPTION” AGAINST LOFTY FORMALISM Martha C. Nussbaum TABLE OF CONTENTS I. PHILOSOPHICAL ELEMENTS.................................................................................................10 II. THREE CONTRASTS................................................................................................................16 A. Utilitarian Welfarism............................................................................................................17 B. Libertarian Minimalism.......................................................................................................21 C. Lofty Formalism (Versus “Perception”) .............................................................................24 III. HISTORICAL SOURCES...........................................................................................................33 A. Aristotle and the Stoics ........................................................................................................33 B. Early American Thought: Liberty of Conscience ..............................................................41 C. The Eighteenth Century: Smith on Education, Paine on Social Security....................46 D. Nineteenth and Twentieth Centuries: The Capabilities Approach Opposes Utilitarianism and Libertarianism.......................53 IV. THE CAPABILITIES APPROACH IN AMERICAN CONSTITUTIONAL LAW ...................56 A. The Religion Clauses.............................................................................................................60 B. Separate but Equal................................................................................................................64 C. Poverty and Due Process .....................................................................................................67 D. Education...............................................................................................................................69 V. THE CAPABILITIES APPROACH IN THE 2006 TERM: FAILURES OF “PERCEPTION” ................................................................................................73 A. Good News on Environment and Education ....................................................................74 B. Women’s Health and Employment: Paternalism and Obtuseness ...................................77 C. Bad News on Education: Curtailing Race-Based Remedies...........................................87 D. Religion and Standing: Mere Words on Paper? ...............................................................94 VI. CONCLUSION: CAPABILITIES AND THE 2006 TERM.......................................................95 4 THE SUPREME COURT 2006 TERM FOREWORD: CONSTITUTIONS AND CAPABILITIES: “PERCEPTION” AGAINST LOFTY FORMALISM Martha C. Nussbaum∗ A man, without the proper use of the intellectual faculties of a man, . seems to be mutilated and deformed in a[n] . essential part of the character of human nature. Though the state was to derive no advan- tage from the instruction of the inferior ranks of people, it would still de- serve its attention that they should not be altogether uninstructed. — Adam Smith1 Excellence grows like a young vine tree Fed by the green dew, Raised up among wise and just people To the liquid sky. — Pindar2 It is evident that the best political order is that arrangement in accordance with which anyone whatsoever might do very well and live a flourishing life. — Aristotle3 hat are people able to do and to be? And are they really able to W do or be these things, or are there impediments, evident or hid- den, to their real and substantial freedom? Are they able to unfold themselves or are their lives, in significant respects, pinched and starved? ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– ∗ Ernst Freund Distinguished Service Professor of Law and Ethics, The University of Chi- cago (Law, Philosophy, and Divinity). I am grateful to Ryan Long and Nick Nassim for research assistance, and to Scott Anderson, Douglas Baird, John Deigh, Chad Flanders, Andrew Koppel- man, Charles Larmore, Gabriel Richardson Lear, Jonathan Lear, Brian Leiter, Eric Posner, Rich- ard Posner, Adam Samaha, Geoffrey Stone, David Strauss, and Cass Sunstein for valuable com- ments on earlier drafts. 1 2 ADAM SMITH, AN INQUIRY INTO THE NATURE AND CAUSES OF THE WEALTH OF NATIONS 788 (R.H. Campbell et al. eds., Liberty Classics 1981) (1776) [hereinafter SMITH, THE WEALTH OF NATIONS]. 2 PINDAR, Nemea VIII, ll. 39–42, in CARMINA (C.M. Bowra ed., 2d ed. 1947) (author’s translation). 3 ARISTOTLE, POLITICA 1324a23–25 (W.D. Ross ed., 1957) (author’s translation). 5 6 HARVARD LAW REVIEW [Vol. 121:4 What about their environment — material, social, and political? Has it helped them to develop their capacities to be active in impor- tant areas of life? If people are like Pindar’s vine tree, is their envi- ronment more like a rich soil tended by wise and just gardeners, or more like an arid soil tended by indifferent gardeners, or gardeners with a restricted conception of their task? More specifically, to focus on just one part of our larger question that touches on constitutional law: How have the basic constitutional principles of a nation, and their interpretation, promoted or impeded people’s abilities to function in some central areas of human life? Does the interpretation of constitutional entitlements yield real abilities to choose and act, or are the constitution’s promises more like hollow verbal gestures? The idea that all citizens in a nation are equally entitled to a set of substantial preconditions for a dignified human life has had a lasting appeal over the centuries in Western political and legal thought — less because intellectuals have favored it than because it has great reso- nance in the lives of real people. Appealing though the idea is, however, many things can go wrong when a nation sets up and interprets political principles that define citizens’ basic entitlements. Often, in one way or another, citizens are less like substantially free people, who can choose to act in the ways most pertinent to human dignity, than like prisoners, unable to select modes of activity that are central to a life worthy of human dignity. This happens most obvi- ously when a regime represses choice across the board, curtailing many of the entitlements that are traditionally thought central to such a life. Sometimes, however, imprisonment is only partial. It does not ex- tend across the entire range of central entitlements, and yet citizens are like prisoners in at least some areas of life — as, for example, when a regime that supports some central opportunities curtails the freedom of religion or the freedom of speech. Sometimes, imprisonment is partial in a different way: only certain groups are affected. Some (privileged) people are free to select the core set of valuable functions, while other people are not — as, for example, when a hierarchical constitution accords basic entitlements to men and not to women, to whites and not to blacks, to the rich and not to the poor. Sometimes, these two types of partial imprisonment intersect, as when a regime treats blacks and whites, women and men, equally with respect to voting rights, but denies them equal educational or employ- ment opportunities. Sometimes, imprisonment is subtle, almost hidden: the words in a nation’s constitution may be promising, extending basic entitlements to all citizens on a basis of equality, but the interpretation of these enti- tlements is so narrow that groups of citizens are not really able to se- 2007] THE SUPREME COURT — FOREWORD 7 lect some crucial activities. In name, they are equally free, but not in actuality. For example, a group of citizens might have rights to free speech and political participation, but be deprived of educational opportuni- ties that are necessary to exercise those rights on a basis of equality with others. Or they might have the freedom of religion in name, but be unprotected against some common assaults against their equal dig- nity as citizens with diverse religious (and non-religious) views of the good life. Or they might be guaranteed protection against discrimina- tion on the basis of sex, but discover that their legal entitlements have been interpreted in such a way as to render the meaningful exercise of that right extremely difficult. For several centuries, an approach to the foundation of basic politi- cal principles that draws its key insights from Aristotle and the ancient Greek and Roman Stoics has played a role in shaping European and American conceptions of the proper role of government, the purpose of constitution-making, and the nature of basic constitutional entitle- ments.4 This normative approach, the “Capabilities Approach” (CA), holds that a key task of a nation’s constitution, and the legal tradition that interprets it, is to secure for all citizens the prerequisites of a life worthy of human dignity — a core group of “capabilities” — in areas of central importance to human life. The purpose of this Foreword is to study the CA as a framework for understanding the foundations of political entitlements and consti- tutional law, to sketch its history, and to measure against this norm some salient aspects of our tradition of constitutional interpretation, both formerly and in the 2006 Term. My contention is that the United States has had an inconstant relation to the CA, protecting some enti- tlements very effectively, but shying away from the