Balkinization: On Fleming and McClain’s Ordered Liberty

On Fleming and McClain’s 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)

Sotirios Barber

In Ordered Liberty Fleming and McClain answer communitarian, civic republican, and progressive criticisms of liberalism by conceiving American constitutional rights as aspects of a broader concern for public purposes, like a population of personally and socially responsible adults committed to deliberative democracy. Ordered Liberty reminds this reader of Charles Evan Hughes’s famous observation in Parrish that the liberty protected by the Due Process Clause is liberty in a social organization that requires the protection of law against the evils that menace the people’s health, safety, welfare, and morals and that regulation reasonably related to a reasonable conception of the public interest is due process. Fleming and McClain show that this socially responsible or “ordered liberty” view of rights not only answers the critics of liberal constitutionalism but also more accurately describes what the Court has actually said in the personal autonomy cases that stretch from Meyer and Pierce to Lawrence. The book demonstrates the moral and interpretive superiority of Justice Harlan’s reasoned judgment approach to the meaning of liberty and exposes the strict-scrutiny approach of Justices Scalia and Rehnquist as little more than an instrument of their hostility to the personal rights claimed from Griswold forward. The book’s graceful but firm thumping of Rehnquist and Scalia is sure to have wide appeal – frosting on the cake, appropriately applied in the concluding chapter.

Fleming and McClain are surely right. A reasoned judgment or ordered liberty view of rights is an imperative of common sense and constitutional language. Constitutional rights restrain government, ours is a man-made constitution not one divinely revealed, and no one would make a government for the chief purpose of restraining it. If constitutional rights have a place among the ends of government they must be either instrumental to or expressive of some widely admired ends or positive goods, like a population of self-directed persons with the moral and intellectual competence requisite for membership in a deliberative democracy. And because government is an ends-oriented functionary and ends are pursued through power, not rights, governmental power is conceptually and morally prior to rights. Even the protection of rights requires the widespread respect for rights and the tax-supported systems of criminal and civil justice for vindicating them, which attitudes and institutions are themselves provisions of power, not rights. The security of rights thus requires a public-spirited or virtuous people – people who respect others and are willing to pay the costs of protecting their rights -- and this in turn shapes the rights to be secured. Rights must be either functional to public purposes or not dysfunctional to them. And this is what a reasoned judgment approach to rights would insure.

If a regime of rights depends on a socially responsible and virtuous people, or to the extent that it does, a government sworn to preserve a regime of rights will actively cultivate the requisite material and attitudinal conditions. Hence Fleming and McClain’s liberal perfectionism. But whether they go far enough – or, better, whether they recognize how far they have gone – is not clear. They describe themselves as mildly perfectionist maybe because they think there’s something illiberal about a comprehensive liberalism or because they’re not sure a knock-down argument is available to defend a comprehensive liberalism. Yet a mild perfectionism is a form of perfectionism and therewith a step toward comprehensive liberalism. The question is how big a step. For some folks it will be bigger than Fleming and McClain think. Their “reasonable pluralism” has a bite. It will exclude folks who refuse to give and exchange reasons in good faith or who think that “the Bible says so” counts as a reason for criminalizing contraception, abortion, and same-sex intimacy, not to mention the subordination of women and racial minorities. These folks have hardly disappeared from American life, and we comprehensive liberals (including mildly comprehensive liberals) need to come out of the closet and ask ourselves not whether we can reach everyone with reasons (because we can’t) but whether we can satisfy ourselves that unreason shouldn’t count. The road to answering this question is a long one. It starts in metaphysics and ends in political philosophy, and generations of academic historicism and value-free social science leave the answer very much in doubt, for bible thumpers aren’t the only ones who won’t listen.

Sotirios Barber is Professor of Political Science at Notre Dame University. You can reach him by e-mail at flaxbar at msn.com

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