Public rule-following and constitutional "fidelity"

I find it interesting to read Matthew Adler's "Constitutional Fidelity, the Rule of Recognition, and the Communitarian Turn in Contemporary Positivism" paper (here) against the background of Philip Pettit's "The Reality of Rule-following" (here). Adler's paper summarizes the struggles that legal positivists have had in moving beyond H.L.A. Hart's not-so-helpful formulation of the Rule of Recognition as a 'social rule'. The difficulty, generally speaking, is that the level of cooperation and (colloquially speaking!) coordination that extant philosophical models of group activity presuppose seems to be lacking in the real world with our legal criteria of validity. In response, some theorists have explored weaker and weaker models of social practice, but Adler suggests that even these do not go far enough. The problem, for him, is that all these models insist on "group-sensitive" acceptance of the rule or criteria, which rules out the sort of "group-insensitive" acceptance displayed by a "constitutional fidelity" that proclaims its version of the rules to be correct no matter what everyone else thinks. Surveying the landscape of American constitutional theorizing, Adler finds this "fidelity" ubiquitous and hence considers it a strike against most positivists that they treat it as somehow deficient.

I'll put aside the specifics of the various proposals at issue here--Scott Shapiro's 'massively shared agency', in particular, I need to look at more closely--and just touch on why I think some very general philosophical worries about public rule-following might perhaps push back against Adler. In other words, rule-following itself might preclude group-insensitive (GI) acceptance, making "constitutional fundamentalism" perhaps a better label for such an attitude than "fidelity."

Pettit's paper is part of the vast literature (with which I have only a dilettante's acquaintance; caveat lector) responding to Kripkensteinian worries about how we can ever know ourselves to follow one rule rather than another (because all our prior experience underdetermines future use, &c). He wants to account for our being able to directly but fallibly "read off" of particular rules applications of potentially indefinite scope. In order to do this, Pettit takes an interestingly naturalist tack: perhaps a rule can be uniquely picked out by prior uses through an exemplification relation, such that even if (a, b, c) are consistent with rules (r1, r2, ... , rn), they will in fact exemplify only r1 if presented in ideal conditions to beings like us with our particular, evolutionarily adaptive, capacities. Without at least hypothetical others to compare reactions with, however, we lose the fallibility requirement; in order to know that I'm following a rule rather than grasping at a different one each time a new situation presents itself, I must be able to engage in counterfactual introspection to see how I might have gone wrong in my responses.

What about public rules? Here there's an extra difficulty: I need to know not merely that I'm continuing to apply one rule to various situations, but also that it's the same one that you're applying. As Pettit puts it, "it is only if the person identifies the rule on the basis of an interpersonally as well as intertemporally standardized inclination that I can know which rule he is following." But this isn't--can't be--a one-time encounter; it's only by continually interacting with one another, testing our (fallible) responses against each other and jointly wrestling with that fallibility, that we have any reason for believing that we're still following the same rule. Apart, we have nothing to combat the inescapable worry that we're on two separate tracks that ran together for some time before diverging.

This is, of course, transparently speculative--but not implausible. For whatever reason, I find it enormously appealing. And it presents an interesting lens through which to study constitutional rules. In particular, it highlights the sheer precariousness of political and legal rule-following: somehow, we must embed this back-and-forth of collective error-correction within an institutional structure robust enough to withstand the enormous pressures that the interests at stake in alternate rule-interpretations will call forth. Because unlike [most] questions of linguistic or mathematical rules, everyone involved in the practice of constitutionalism cares very deeply (or ought to!) about which rule we're following. Indeed, only the most bloodless of rule-fetishists would deny that it is sometimes more important to grasp onto a different, better rule than to accept the consequences of the existing one. Values, interests, personal and communal histories and identities--all of these will loom far larger in the legal than in the [pure] linguistic case.

The irony here is that, in defusing the skeptical paradox, we've made the everyday practice of constitutionalism seem almost miraculous. But is this a bug, or a feature? How confident can we be--how confident are we--that we in the contemporary United States are, in fact, following the same rules? Are John Yoo and Marty Lederman displaying the dispositions required of public rule-followers? Were Antonin Scalia and Sandra Day O'Connor? To depersonalize things a bit: are the institutions we rely upon to ensure that we're all "tuned in" to the same constitutional frequency--from our educational system and most obviously our law schools, to Congress, the Presidency, the vast administrative apparatus and the courts, and of course our media ecosystem--up to the task?

The question is not whether there are any public rules of constitutional validity; of course there are. The question is rather one of degree: just how rule-governed, how constitutional, our system is--or could possibly be. Less so than we once thought, I suspect.