Out of Bounds

Lawrence v. Texas creates a crisis for inclusive constitutionalism. Too often, advocates of inclusion and tolerance wish to include only those ideas and groups with which they agree. The test for true inclusion and tolerance, however, is whether we are willing to protect groups when they engage in conduct of which we disapprove. It follows that the boundaries of inclusion cannot be established simply by moral argument; yet, any plausible version of constitutional law must use some method to bound the people and activity that it protects. Defenders of inclusive constitutionalism have not been successful in identifying a method, independent of moral argument, for bounding constitutional rights. This difficulty can best be addressed by modifying our ambitions for constitutional law. Instead of a method for requiring agreement, constitutional law might be reconceptualized as a method for destabilizing all boundaries, thereby reconciling groups with widely different moral views to the political order