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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 Ordered Liberty: A Response to Sotirios Barber
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Wednesday, February 20, 2013
Ordered Liberty: A Response to Sotirios Barber
Guest Blogger For the Symposium on James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)
James E. Fleming & Linda C.
McClain
We are grateful to Jack Balkin
for facilitating this symposium on our book, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard
University Press, 2013). We appreciate having such thoughtful interlocutors
concerning it. We will address Sotirios Barber’s review in this post and turn
to the other reviews as they are posted throughout the week.
Barber succinctly encapsulates
our “ordered liberty” view of rights in a way that brings out affinities
between two competing traditions often seen as in conflict. He justifies rights
from within a “teleological” perfectionist tradition; on that view, rights are
instrumental to admirable ends or positive goods, and governmental power is
conceptually and morally prior to rights. By contrast, we work within the
“deontological” liberal tradition of John Rawls and Ronald Dworkin, which famously
stresses the “priority of liberty” over governmental pursuit of ends (Rawls)
and formulates rights as “trumps” limiting government (Dworkin). Barber is
right to observe that as we work up a conception of “ordered liberty” –
permitting governmental encouragement (though not compulsion) of responsible
exercise of rights, justifying a “formative project” of government inculcating
civic virtues upon which ordered liberty defends, justifying rights in part on
the basis of the moral goods furthered by protecting them, and protecting 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) – the distance between these two traditions
narrows considerably. The gap is narrowed further by our conception of the
Constitution as in part a charter of positive
benefits imposing affirmative obligations upon government to pursue good
things (a conception we gratefully adapt from Barber’s work), not merely a
charter of negative liberties
restraining government. We happily accept his encapsulation of our view of
ordered liberty and reasoned judgment, but with one reservation. Barber’s view
may entail that one has a right only to do responsible things. (Some readers
may recall the debate between William Galston and Jeremy Waldron over whether
there is a right to do wrong.) We consider and reject that view.
We characterize our
constitutional liberalism or civic liberalism as a “mild form of
perfectionism.” As we observe: “‘Perfectionism’ is the term sometimes given to
the idea that government should actively help citizens to live good and
valuable lives” or to shape citizens “pursuant to a vision of human virtue,
goods, or excellence.” (Pp. 4, 9) Our constitutional liberalism posits the
responsibility of government and civil society to inculcate civic virtues and
to foster citizens’ capacities for democratic and personal self-government and,
in that sense, live good lives. Barber is clearly heartened by the mild form of
perfectionism that we develop in the book, but it appears to be too thin for
his blood. Indeed, he suggests that we may have gone farther down the road from
a political liberalism to a comprehensive liberalism than we recognize. We
acknowledge that our project – of taking responsibilities and virtues as well
as rights seriously – narrows the divide between political liberalism and
comprehensive liberalism.
Still, we do draw several lines
between our mild form of perfectionism and comprehensive liberalism. We contend
that government may promote civic
virtues and the capacities for democratic and personal self-government, but may
not promote moral virtues and the good life simpliciter.
We also argue that the civic virtues that government may inculcate and the
moral goods that it may promote are “common to a number of competing
comprehensive conceptions, for example,...commitment, mutuality, companionship,
intimacy, fidelity, and family.” (P. 190) Excluded is governmental imposition
of moral virtues or moral goods characterizing ways of life belonging to a
particular comprehensive conception of the good. What we call our “mild form of
perfectionism” may look intolerably thick from the standpoint of one committed
to liberal neutrality. But we expect that it will look unacceptably thin from
the standpoint of strong perfectionists who advocate, in Robert George’s terms,
“making men moral.” The important question, ultimately, is not how far we have
gone down the slope to comprehensive liberal perfectionism, but whether our
civic liberalism seems appropriate, reasonable, and defensible, given U.S.
constitutional commitments to ordered liberty, equal citizenship, and
democratic and personal self-government. We submit that our civic liberalism is
neither too thick nor too thin but about right.
Barber rightly recognizes that
our “‘reasonable pluralism’ has a bite” with respect to certain illiberal,
authoritarian, unreasonable conceptions of the good life. He contends: “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.” Some readers have praised our
book’s “combativeness” and “feistiness,” but its “bite” may be gentler, more
accommodating, and more prudential than that of Barber’s comprehensive liberal
perfectionism. For example, we argue for (1) governmental inculcation of civic
virtues through ecumenical civic education concerned with teaching tolerance
and respect for equal citizenship rather than with “making men moral” through
direct governmental promotion of a muscular liberal conception of the good life
and (2) governmental encouragement of anti-discrimination norms (in certain
circumstances) through conditioning benefits or subsidies upon a group’s not
discriminating on the basis of race, sex, or sexual orientation, rather than
through outright prohibition of discrimination on such bases. We also
contemplate some measures of accommodation and prudence where clashes between
religious liberty and the aspiration to equal citizenship are concerned. We
advocate this gentler “bite,” not out of agnosticism or neutrality, but on the
basis of practical judgments concerning what approaches are likely to be
persuasive and effective in securing ordered liberty in circumstances of
disagreement.
Finally, Barber is right to
contend that “academic historicism and value-free social science” have corroded
the preconditions for ordered liberty and liberal democracy. We believe,
however, that the road to securing ordered liberty and reconstructing liberal
democracy – through persuading academic historicists and value-free social
scientists to believe in the possibility of reasoning in morality, politics,
and constitutional law – does not travel through “start[ing] in metaphysics,”
but instead through offering powerful, attractive, and plausible substantive
conceptions of ordered liberty and liberal democracy. There is hope (and
evidence) that academic historicists and value-free social scientists, in their
everyday lives, do not practice what they preach. For example, in their
everyday lives of rearing children and engaging in citizenship (including arguing
about politics), they act as if they embrace moral and political principles as
true or reasonable rather than viewing them with detached historicism,
skepticism, or neutrality.
Furthermore, some of the appeal
of the work of liberals like Rawls and Dworkin is that, through the power of
their examples, they persuade at least some ostensible academic historicists
and value-free social scientists that we can
reason about morality, justice, and constitutional law. (People need not and
should not disparage their own positions as simply the values of our time or
the values they subjectively happen to like.) We put more hope in the
persuasiveness of such substantive conceptions and examples than in a path that
“starts in metaphysics and ends in political philosophy.” Our book, in the
spirit of Rawls, seeks to be independent of, or to bracket, the prior
metaphysical questions that Barber would bring to the foreground. Doing so
enables us to get on with the work of political philosophy and constitutional
theory. That is the work upon which securing ordered liberty and liberal
democracy depends.
James E. Fleming is The Honorable Frank R. Kenison Distinguished Scholar in Law, Associate Dean for Intellectual Life, and Professor of Law at Boston University School of Law. You can reach him by e-mail at jfleming@bu.edu
Linda C. McClain is Paul M. Siskind Research Scholar and Professor of Law at Boston University School of Law. You can reach her by e-mail at lmcclain@bu.edu Posted 6:00 AM by Guest Blogger [link]
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