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Balkinization Symposiums: A Continuing List E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahman sabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Finding Common Ground: The Liberal Virtues In Ordered Liberty
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Wednesday, February 20, 2013
Finding Common Ground: The Liberal Virtues In Ordered Liberty
Guest Blogger For the Symposium on James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Eric Blumenson
Ordered Liberty is a splendid book, and
one that future constitutional and political theorists will need to reckon
with. Among other things, the book provides a cogent map of current political
theory; unmasks two-tier due process review (rational basis vs. strict
scrutiny) as a fiction deployed only to deter the
expansion of rights: considers the roles of government, family, civil society
and schools in moral education; persuasively rebuts Sunstein’s judicial
minimalism; and engages communitarian critiques of liberal theory. Most of all,
it presents a full-blown, positive theory of constitutional liberalism that
aims to maintain liberalism’s core commitment to individual autonomy and
liberty while recognizing a substantial role for the state in creating a civic
culture. Jim and Linda achieve this in
part by rescuing liberalism from the overdrawn depictions some of its critics
deploy, and in part by rethinking some of the questions courts and legislatures
increasingly confront in our now explicitly multiculturalist society.
What
I’ll focus on in this comment is not my many areas of agreement with Ordered Liberty’s critiques of other
theories, but on a key element in its
positive theory – the degree to which a liberal state can and should foster
certain virtues and moral goods. It’s not a disagreement, exactly – rather,
some questions and concerns that the book raised for me. First, though, a brief
rendition of what I take to be Jim and Linda’s project.
Ordered Liberty, like
Jim’s book Securing Constitutional
Democracy before it, propounds the view that a constitutional democracy has
a two-fold formative role: it should foster the capacity of its people to act
both as responsible citizens assessing policy and justice (political self-governance)
and as responsible persons deciding how they should live their lives (personal
self-governance). To do this, government
must do more than stand by while people fend for themselves; it must in some
fashion instill civic virtues in its people, and also assure the social and
material conditions important to their exercise. In their new work, Jim and
Linda seek to show how liberalism, properly framed, can achieve this --
contrary to the critiques of communitarians on the one hand, and the desires of
libertarians and minimalists on the other.
Thus an
important part of the book is devoted to defenses of liberalism against the
alternative claims that it is too “thin” and too “thick” in relation to moral
goods and virtues. To illustrate the former, the authors focus on the critiques
of Michael Sandel and, in cameo appearances, Mary Ann Glendon and others (but
not Marx, who was there first[1]). Sandel claims that
liberalism demands stringent neutrality among conceptions of the good,
“exalting choice without regard for the moral good of what is chosen,” and argues
that this straightjacket takes us away rather than towards just and fulfilling
lives. The social and psychological maladies he or others have attributed to
this kind of liberalism are multiple and devastating: an overemphasis of rights
over responsibilities, absolutism over compromise, cold tolerance over
respectful engagement, conflation of the right to do something with the moral
rightness of doing it, individual isolation and anomie instead of community and
common purpose, and a withering away of the virtues and moral goods necessary
to sustain democratic government and fulfilling lives.
As an
exemplar of the critique against the “thickness” of liberalism, Jim and Linda
explore Cass Sunstein’s constitutional minimalism as applied to courts, which claims
that liberal constitutionalism as now practiced is unwisely robust, whether the
courts are pushing autonomy rights or prioritizing values, when these conflicts
are best left to the democratic process. Sunstein argues that judges should
ordinarily issue “incompletely theorized” opinions that don’t go much beyond
the conflict before them.[2]
Defending
against both fronts, Jim and Linda rebut Sunstein’s critique point-by-point,
and situate themselves on what they characterize as the (neglected) common
ground shared by liberals and communitarians. This is their positive theory of
ordered liberty -- a liberalism that “takes rights, responsibilities, and
virtues seriously” by understanding the constitutional order as serving to both
protect individual choice and to promote certain values, thereby securing the
“conditions favorable to the pursuit of happiness.”
Some questions about virtue-promoting liberalism.
Michael
Sandel has argued that liberal principles and virtue commitments are
antithetical, and that this makes liberalism unwise and unworkable. Regarding
same-sex marriage, for example, Sandel says that dispute is “fundamentally a debate about whether gay and lesbian
unions are worthy of the honor and recognition that, in our society,
state-sanctioned marriage confers. So the underlying moral question is
unavoidable.” Jim and Linda agree with Sandel that the state (and its
courts) cannot afford to ignore substantive moral goods, but argue contra Sandel that liberalism has the
resources to do so in the right way:
it can promote the moral goods and virtues that are needed for a democracy and
equal respect to thrive, and for people to lead good lives, without having to
endorse any controversial comprehensive value system. It can remain neutral in
the latter sense because the moral goods it promotes -- the virtues and
capacities that make democracy valuable and enable people to live good lives --
are common to diverse comprehensive systems and therefore imply no judgment on
the worth of particular ways of life.[3] This principle is, I
think, genuinely better than its “thin and thick” alternatives. My concern,
though, is that it is this is more easily said than done.
To show
that their hybrid principle is both plausible and practical, Jim and Linda
point to a number of court opinions based simultaneously on freedom of choice
and on the moral worth of particular substantive choices. The cases they discuss are the Massachusetts
and California cases finding a right to same sex marriage (as well as the
legislative arguments made successfully to support New York’s Marriage Equality
Act); another is the Lawrence v Texas,
which they argue validated intimacy, whether homosexual or heterosexual, as
both a moral good and a protected choice. But these examples are not entirely
persuasive: if one believes both justifications apply, of course “both types of
argument can stand side by side,” as Jim and Linda say.
But
what about cases in which the two aims are taken to conflict, like a court
opinion rejecting gay marriage on moral grounds, or a case involving an
asserted right to polygamy? Many people
do not (yet?) consider polygamous marriage an institution that should be
honored; to the contrary, many consider it a form of oppression, at least as
generally practiced. Should it nevertheless be deemed an individual right so
long as all parties enter into it freely? Or is the state justified in
overriding the choices of poligamists because its substantive moral conception
of family condemns it? The same question has fueled a two decade controversy in
France over banning the headscarf, which the government sees as a form of
gender oppression even when chosen by women who wear it. In these situations,
the minority’s challenged conduct seems to be a central part of a
comprehensive, arguably oppressive way of life, and the egalitarian virtues Jim
and Linda want states to support are not neutral towards them. Ordered Liberties’ first and most
plausible line-drawing principle fails in these harder cases.
So more
needs to be shown and said in these cases. Specifically, further lines have to
be drawn, and Jim and Linda provide some guidance regarding where to draw them.
But we are now far from any kind of easy reliance on the neutrality or
commonality of civic virtues, and in a messier world with less persuasive
options. Here are two additional lines Jim and Linda propose to govern a
liberal state in its promotion of virtues and moral goods:
(1) Persuasion rather than compulsion: “We reject the idea that rights insulate right-holders
from moral judgments about their exercise and argue that the state may
encourage people to exercise their rights responsibly, short of compelling them
to do what the government thinks is the responsible thing.” The state may seek
to persuade through school curricula, withholding funding to organizations, and
many other means Jim and Linda discuss. But this distinction doesn’t solve the
problem because it appears the government’s persuasive efforts should still be
limited to supporting civic virtues and avoid weighing in on the relative moral
worth of distinct ways of life.[4]
(2) Rejection of unreasonable
comprehensive moral doctrines: Jim and Linda
draw a significant limit on liberal neutrality: the state need not tolerate
unreasonable ways of life, nor permit private (though apparently consensual)
injustices.[5]
In Ordered Liberty, unreasonable ways
of life seem to be those that oppressively contradict the civic virtues,
thereby solving the problem raised by the initial division between civic
virtues and comprehensive ways of life. Adherents of those cultures deemed
unreasonable would say that these liberal civic virtues comprise one more
comprehensive moral doctrine rather than the privileged, value-neutral
framework it claims to be. Whether or not this is so, this “exception” to liberal
neutrality is common to many egalitarian, choice-based political theories,
including current international human rights doctrine. Liberalism is simply not compatible with all
ways of life.
Let’s note, however, that this is no small footnote to the neutrality
formulation Ordered Liberty presents.
Most cultures in history, and a great number of them today including numerous
religious or traditionalist American communities, reject the egalitarian and
progressive civic virtues Jim and Linda want government to support. As they describe them, these virtues are what
enable people to act responsibly, both as citizens determining their government
and as individuals choosing their own paths in life. They are the virtues that
sustain a certain kind of culture, one composed of free and equal individuals
who value choice and conscience, critical thinking, diversity, reciprocity, and
respectful engagement with strangers of different views. Are religious or
traditional subcultures that remain inward-looking, hierarchical and role-based
to be considered unreasonable and subject to government dissuasion? To legal
restrictions against, e.g. poligamy, the headscarf, or single sex education?
Shall we draw further lines between degrees of internal oppression, or between
public and private spheres? Given the importance of this exception to liberal
neutrality among ways of life, I’m not sure the authors’ constitutional
liberalism provides enough guidance to
identifying “unreasonable’ ways of life (apart from those that subjugate women)
and what government actions may follow from it.
*
There
is no doubt that a liberal state cannot avoid endorsing or condemning some moral goods -- any school board
member, any criminal lawyer, and any city planner charged with improving urban
life knows that – but the question that remains is, how reticent should the
state (and the courts) be in doing so. The harm principle was one answer; Jim
and Linda’s distinction between comprehensive moral schemes which the state
should be neutral toward, and more modest moral goods like civic virtues and
equal respect, which the state can seek to further, is another. Their theory, I
think, really does allow the state to respect diversity while promoting the
virtues that make for good citizens and good people, even if it can’t
persuasively resolve the hardest cases. Their nuanced, less absolutist version
of neutrality serves liberal ideals well, respecting the autonomy of citizens
whose lives should be their own, avoiding their division into insiders and outsiders,
and signifying that the state need not be taken to be endorsing what it
permits.[6] (Would advances in gay
marriage have occurred so rapidly in the absence of that liberal ideal?) Like all good political theories, theirs
will generate controversy, and will confront a set of different challenges to
its application in practice – common challenges related to objectivity, indeterminacy,
scope, legitimation of less-than-democratic institutions….But these are issues
for another day, or another book. Meanwhile,
Ordered Liberty presents a fertile new theory worth investing in, one that
should appeal to liberals and some of their communitarian critics alike.
[1] Marx decried
the liberal rights of the French constitution as the rights of “man separated
from man and the community…,a monad reposing on itself.”
[2] It is
noteworthy that the Sandel and Sunstein cases are not symmetrical: one concerns
how courts should act, the other concerns the role of a liberal state. Because
Jim and Linda move from political philosophy to constitutional interpretation
and back, and only rarely refer to constitutional constraints, I take Ordered Liberty to be a theory of the
liberal state generally, rather than a theory of judging or of constitution-making.
[3] The authors argue that the government “should not embrace any comprehensive moral doctrine [but
only] principles of constitutional government that all citizens, whatever their
comprehensive views, can reasonably be expected to endorse.” Liberalism
“does not preclude government from
pursuing moral goods or public values that are common to a number of competing
comprehensive conceptions, for example…commitment, mutuality, companionship,
intimacy, fidelity, and family.”
[4] Jim and Linda say that the “key distinction with respect to
appropriate and inappropriate governmental persuasion is between promoting
virtues (or values) characterizing the ideal of the good citizen and promoting
virtues (or values) characterizing ways of life belonging to particular
comprehensive moral doctrines.”
[5] “Liberal toleration does not extend to unreasonable comprehensive moral
doctrines….nor does it tie government’s hands from addressing private sources
of injustice threatening such self- government.”
[6] Ironically,
communitarians who argue that rights talk leads to rights being confused with
rightness would exacerbate that problem unless rights were so narrow as to be
truly indistinguishable from the right thing to do --- which no one seeks.
Eric Blumenson is Professor of Law at Suffolk University Law School. You can reach him by e-mail at eblumens at gmail.com
Posted 12:00 PM by Guest Blogger [link]
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Press 2006) ![]() Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |