Balkinization: Ordered Liberty: A Response to Sotirios Barber

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

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