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Perspective Shift:
- Rights aren’t zero-sum — they’re contextual. What we’ve treated as winner-take-all constitutional battles are actually invitations to balance multiple legitimate claims. The goal isn’t to declare one right victorious, but to discover how different rights can coexist and be proportioned within specific contexts and communities.
- Justice emerges from recognizing our fundamental interconnectedness. The myth of objective, context-free legal reasoning masks the reality that all rights exist within webs of relationship and responsibility. Authentic justice honors the dignity of all voices affected by legal decisions.
- Originalism claims to defend the Constitution — but in reality, it often paralyzes the ongoing evolution of justice. If law is to serve a pluralistic, developmental society, it must grow along with us.
- The true flaw in Roe v. Wade wasn’t the recognition of privacy — it was the failure to integrate the plurality of rights and responsibilities in play. The result? A polarized legal culture trapped in false binaries.
- The Ninth Amendment reveals the Constitution as covenant, not just a contract. The founders recognized that human dignity transcends any enumerated list. Constitutional interpretation should expand our capacity to honor the full spectrum of human flourishing, not constrain it to historical precedent.
In this provocative presentation, Mark Fischler challenges one of the most fundamental assumptions underlying American constitutional interpretation: that rights must be viewed as binary, winner-take-all propositions. Drawing from Integral theory and Constituonal scholars including Jamal Greene and others, Fischler presents a compelling case for revolutionary change in how we understand and adjudicate competing claims in a pluralistic society.
A Paradoxical Agreement with Justice Alito
Mark opens with a startling thesis: Justice Alito was correct that Roe v. Wade was “egregiously wrong” — but not for the reasons Alito believed. Rather than being flawed for recognizing women’s privacy rights, Roe’s fundamental error was its failure to acknowledge the multiplicity of rights at stake, including both maternal and bodily autonomy, and consideration for the rights of the fetus. The binary approach, Mark argues, created the polarized battlefield that has defined American politics for fifty years.
Historical Foundations and Missed Opportunities
Through masterful historical analysis, Mark traces the roots of our current constitutional crisis back to the 1905 Lochner decision, highlighting the prescient dissent of Justice John Marshall Harlan—the “Great Dissenter”—who uniquely recognized multiple competing rights requiring contextual balancing. This approach, largely forgotten in legal education, offers a roadmap for transcending our current impasse.
Mark describes how West Germany’s Constitutional Court successfully navigated similar terrain in 1975, recognizing both women’s reproductive autonomy and fetal interests while requiring the political process to craft solutions honoring both — resulting in a comprehensive framework that remains basically stable today.
The Cost of Constitutional Fundamentalism
Mark demonstrates how our binary rights framework has systematically failed to address structural inequalities across multiple domains: education (San Antonio v. Rodriguez), criminal justice (McCleskey v. Kemp), and racial equity (Students for Fair Admissions v. Harvard). By declaring certain considerations “off-limits,” the Supreme Court has short-circuited democratic dialogue and entrenched existing power structures.
A New Vision of Human Rights
Drawing on integral developmental theory, Mark proposes “Integral Democratic Inclusivity” — a constitutional interpretation framework that recognizes the multiplicity of rights inherent in complex social situations. This approach would utilize the long-dormant Ninth Amendment to acknowledge unenumerated rights while requiring proportional balancing based on situational context and community dialogue.
This isn’t merely academic theory — Mark provides concrete examples of how this framework could address contemporary flashpoints: religious liberty versus anti-discrimination, gun rights versus public safety, environmental protection versus property rights, and disability accommodation within fiscal constraints.
A Call for Integral Leadership
The presentation concludes with an urgent call for integral thinkers to lead community conversations about rights and responsibilities. With their understanding of developmental stages, systemic thinking, and contextual awareness, they are uniquely positioned to facilitate the nuanced dialogue necessary for navigating competing claims in a diverse society.
Mark’s vision offers hope for transcending the constitutional fundamentalism that has paralyzed American democracy, pointing toward a more mature approach that honors the dignity of all voices while enabling practical solutions to complex social challenges.
Whether you come from a legal background, an integral lens, or are simply seeking a more coherent and compassionate vision of justice, this talk will invite you to consider: what would it look like for law itself to grow up?
—Recorded at the 2024 ICON Conference in Denver, Colorado
Key Questions
Here are some questions you can contemplate while listening to this discussion. We suggest you take some time to use these as journaling prompts.
- Where in my life do I default to either/or thinking when both/and might be more truthful? Notice the conflicts where you’ve assumed only one perspective can be valid. What multiple truths might be trying to coexist?
- What rights do I take for granted — and whose rights might I be unconsciously overlooking? Consider the privileges you rarely question. Who else’s legitimate claims might be in tension with your assumptions about what you deserve?
- Am I committed to being right, or to finding what’s right? When you encounter perspectives that challenge your values, do you defend your position or genuinely explore how competing truths might both have validity?
- How do I respond when my deeply held values conflict with someone else’s? Do you dismiss their concerns, or do you get curious about what legitimate need their position might be protecting?
- What communities am I part of that would benefit from harder conversations about competing rights? Where are the unspoken tensions in your workplace, family, or social circles that might need frameworks for holding multiple perspectives?
- Do I participate in democracy as a consumer of outcomes — or as a participant in collective discernment? When political issues arise, do you simply choose sides, or do you engage in the difficult work of understanding what different groups are trying to protect?
- What would change if I saw constitutional rights as relational rather than individual? How might your understanding of freedom, privacy, or equality shift if you considered them always in relationship to others’ legitimate claims?
- Where do I need to develop greater capacity for holding paradox and complexity? What simple answers am I clinging to that might be preventing more mature, nuanced responses to difficult social questions?
About Mark Fischler
Mark Fischler is a Professor of Criminal justice and current program coordinator for the criminal justice and criminology programs at Plymouth State University. Prior to joining the Plymouth State faculty, he practiced law, representing poor criminal defendants for the New Hampshire Public Defender’s Office. Mark has worked extensively with alternative theoretical models in law, constitutional law, and higher education, and has published on integral applications to teaching, being a lawyer, and legal theory. His focus in the classroom is ethics and criminal procedure, and is well respected for a teaching philosophy that emphasizes recognizing the humanity and dignity of each student. Professor Fischler was awarded the outstanding teaching award at his university in 2014. He currently offers a weekly Spiritual Inquiry class through Satya Yoga Studio.