Balkinization  

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

Home