Balkinization  

Wednesday, February 20, 2013

Ordered Liberty: Response to Eric Blumenson

Linda McClain

Jim Fleming

For the Symposium on James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)

We are grateful to Eric Blumenson for his sympathetic yet critical review of our book, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013). If Sotirios Barber is concerned that our civic liberalism may be too thin (as compared with a comprehensive liberal perfectionism), Blumenson worries that it may be too thick (as compared with liberal neutrality).

Blumenson begins with a gracious and graceful summary of our view, bringing out the “liberal virtues” in Ordered Liberty. He praises our project’s attempt to find common ground with Michael Sandel’s civic republicanism and Mary Ann Glendon’s communitarianism through a “positive theory of ordered liberty that both protects individual choices and promotes certain virtues.” Yet, he has two main criticisms of our theory. One, he contends that “remain[ing] neutral” between controversial comprehensive conceptions of the good life and promoting moral goods “that are common to diverse comprehensive systems” is “more easily said than done.” Two, he raises doubts about whether the lines that we draw between our civic liberalism and a comprehensive liberal perfectionism can hold in hard cases, such as not recognizing polygamous marriage and banning the headscarf.

We shall respond to each of these criticisms. First, we fear that Blumenson has misinterpreted our project as aiming merely to provide an “exception” or large “footnote” to liberal neutrality. We mean instead to develop a civic liberalism that is an alternative to liberal neutrality and to comprehensive liberal perfectionism. Our theory (a) permits governmental encouragement (though not compulsion) of responsible exercise of rights; (b) justifies a “formative project” of government inculcating civic virtues (though not moral virtues simpliciter) upon which ordered liberty depends; ( c) justifies rights on the grounds both of individual autonomy and of the moral goods furthered by protecting them; (d) adjusts basic liberties where they conflict in order to secure equal citizenship for all; and (e) protects basic liberties stringently though not absolutely through reasoned judgment rather than falling for the “myth of strict scrutiny for fundamental rights” under the Due Process Clause (pp. 237-72). Our view is thus considerably different from liberal neutrality as commonly understood.

Second, Blumenson acknowledges that we attempt to draw such lines between our civic liberalism and comprehensive liberal perfectionism. But he worries that our line-drawing “fails in the[] harder cases” like polygamy and the headscarf and fails to provide “enough guidance to identifying ‘unreasonable ways of life.’”

 We have two responses to these worries. One, it is important not to expect too much from a general political or constitutional theory. Here we take inspiration and instruction from John Rawls, who, through his celebrated humility, imparted wisdom in judging what we can expect from a theory. It may be too much to expect that a theory squarely resolve all the hardest cases. It may be enough that it articulates a guiding framework through which we can think more clearly and reasonably about the issues. We do not presume to have resolved all of the hard cases that arise in a diverse liberal democracy such as our own. But we do claim to have put forward a guiding framework for securing ordered liberty and for making reasoned judgments that will enable us better to address these cases.
Two, we are not clear why Blumenson thinks that the lines we draw fail with respect to polygamy and the headscarf. We did not address these two controversies in our book, but here’s a sketch of an approach that it would support. The right to same-sex marriage, we argue there, is justifiable on grounds both of individual autonomy and of moral goods fostered through protecting it. It is also justifiable on the ground that recognizing it is necessary to secure the status of equal citizenship for gays and lesbians. We would argue that these justifications suggest distinctions between same-sex marriage and polygamy. We also would argue, to invoke limitations drawn in Lawrence v. Texas (2003), that concern for consent and coercion, as well as abuse or harm of minors, distinguishes polygamy. So, too, does concern over sex equality. Of course, contemporary practitioners of polygamy suing to challenge the criminalization of polygamy (e.g., the Brown family from Sister Wives) counter with that same language from Lawrence, arguing that consensual polygamy involving adults involves none of those harms and that banning it violates their constitutional right to be let alone and their right to free exercise of religion. These two contrasting views of polygamy raise empirical questions. Women involved in fundamentalist polygamous communities differ in their assessments of it. Without embracing the equation made in Reynolds v. United States (1878) of polygamy with “the patriarchal principle” and “stationary despotism,” we find it persuasive that, based on “the most comprehensive judicial record” on polygamy “ever produced,” the Supreme Court of British Columbia ruled in 2011 that polygamy was “essentially about harm,” rather than freedom of association and religion, and that Canada’s criminal ban could survive a challenge under the Canadian Charter of Rights and Freedoms because of Parliament’s “reasoned apprehension of harm arising out of the practice of polygamy...to women, to children, to society, and to the institution of monogamous marriage.” We can say or accept all this while remaining within civic liberalism and without obliterating the lines between it and comprehensive liberal perfectionism.

The headscarf controversy or, more recently, France’s ban on wearing the full veil in public, raises challenging issues about the best way for a government to promote core principles of (in France) liberty, equality, and fraternity, particularly equality, while also respecting the autonomy and religious freedom of women. We do not have the expertise or the space here to speak definitively about how to resolve that controversy. On the one hand, a Parliamentary Commission’s study concluded that the full veil was “an intolerable infringement on the freedom and the dignity of women.” In particular, witnesses and experts stressed the importance of the face in social and public life. There was also testimony that some women wore the veil due to coercion. On the other hand, some human rights organizations argue that such bans interfere with women’s fundamental human rights in the name of misguided protectionism. Insightful critics of such bans also warn that the veil too often serves a symbol of terrorism and militant Islam that seemingly threatens Western nations. Further, how will excluding veiled women from the public sphere help them in any way? Martha Nussbaum has made powerful arguments that France’s ban reflects a “new religious intolerance.”

Blumenson may think that polygamy and the headscarf (or veil) are especially hard cases for us because he thinks that the only lines we draw concern (1) the civic virtues of the good citizen versus (2) the moral virtues or excellence of the good person. But our civic liberalism is concerned not only to inculcate civic virtues but also to develop the capacities for democratic and personal self-government and to secure the status of equal citizenship for all. It is also concerned to frame and adjust clashes of rights between liberty and equal citizenship. As we have tried to indicate, public values like concern for these capacities, for children as future citizens, for the status of equal citizenship, and for harm, together with the need to adjust such clashes, come centrally into play with respect to both polygamy and the headscarf (or veil). Our civic liberalism, with its concern to secure ordered liberty, provides a framework for addressing such issues.

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