posted by Mark Graber
The most recent Pew surveys suggest that most educated elites are either Solid Liberals, who take the liberal position on almost all constitutional issues of the day, or Staunch Conservatives, who take the conservative position on almost all constitutional issues of the day. The Pew surveys and thers find that conservative elites are more conservative than the average Republican and, unlike most less educated, less affluent and less politically involved Republicans, take the most conservative position on virtually all constitutional issues of the day. Liberal elites are similarly more liberal than the average Democrat, and, unlike most less educated, less affluent and less politically involved Democrats, take the most liberal position on virtually all constitutional issues of the day. These findings differ considerably from similar, but not identical, surveys taken during the heyday of the Warren Court. Those surveys found that elite Republican and Democratic often had more in common with each other than with the average member of their partisan coalition, that elites tended on most issues to be more liberal than other citizens, but that liberalism in one issue (i.e., race) did not necessarily predict liberalism on other issues (i.e., free speech). In short, Americans have moved from a society structured by elite consensus and conflict diffusion to one structured by elite polarization and conflict.
Ordered Liberty is one of many exceptional works trying to work out the precise constitutional vision of Solid Liberals. As is true of most Solid Liberals, Fleming and McClain support the Obama health care program (or think the program should be expanded), same-sex marriage, affirmative action, legal abortion, a sharp separation of church and state, and related policies. Unlike many contemporary liberals, Fleming and McClain maintain that liberalism has a robust theory of the good life and a strong theory of liberal rights can be yoked with a strong theory of liberal responsibilities. While much late twentieth century liberalism insisted on government neutrality on the good life and regarded rights as licenses to harm, Ordered Liberty is more consistent with an older liberalism, exemplified by such thinkers as John Dewey, Jane Addams, and Louis Brandeis, which justified liberal policies as the best means for fashioning good democratic citizens. Fleming and McClain also break from many contemporary liberals by insisting that constitutional interpretation and adjudication ought to be considered important means for realizing liberal constitutional aspirations. In sharp contrast to many twentieth century liberal thinkers, who (to paraphrase Martin Shapiro) loved what the Warren Court was doing but hated the court for doing it, Fleming and McClain enthusiastically champion a federal judiciary committed to their particular version of Solid Liberalism. While I would quibble with some details, I am inclined to take the somewhat stronger position that government can never be neutral on the good life (so all we can do is choose between different liberal or conservative conceptions of the good), and I think that a liberal court appointed by liberal political officials is empowered to impose liberal policies in outlier jurisdictions. In short, as a good Solid Liberal, I find very little of importance to object to in Ordered Liberty or, for that matter, in much recent liberal constitutional thought. As I have previously stated, a polity that took Ordered Liberty or similar works as a constitutional guide, would be a good policy.
At several points in the book, Fleming and McClain threaten to break out of the Solid Liberal mold, but pull back. One point occurs in the discussion on abortion. Ordered Liberty suggests that a state, consistent with constitutional liberty, might persuade women not to have abortions. Fleming and McClain then immediately and correctly note that most legislation aimed at “persuasion” does so largely by presenting false/misleading information or by burdening the choice, rather than trying to convince women through reasonable normative arguments that giving birth is the better choice. They then suggest that a balanced presentation of the merits of abortion is best. Another point where Ordered Liberty threatens but pulls back from challenging ore Solid Liberal beliefs occurs during the discussion of Bob Jones v. United States. Ordered Liberty suggests that the Supreme Court in that case correctly ruled that religious organizations can be denied tax exemptions if they teach racism and other abhorrent doctrines. I confess to be troubled by the analysis. I suspect that most Jewish schools at the very least encourage students to date and marry other Jews, that these schools teach the doctrine that Jews are a chosen people, and that a great many other religions engage in similarly illiberal teaching. Given the importance of the welfare state in the lives of most citizens, a point Fleming and McClain make elsewhere in the book, I confess to some discomfort with the constitutional rule they eventually endorse that forbids religious coercion but permits religious groups to be denied state benefits that go to other religious groups with more liberally accepted beliefs. I think based on what the authors suggest elsewhere in the book, a case can be made that Bob Jones ought to be rethought. Having said this, however, I should cheerfully acknowledge that Fleming and McClain have thought far more seriously about these matters than I have and I am sure that should they care to response to this point, they will have a strong explanation as to why they did not cross liberal boundaries on both abortion and Bob Jones. The best I can say is that Ordered Liberty would have been more interesting to me (and maybe to no one else) if the authors had more aggressively spelled out how pro-life an American constitutional regime could be and suggested that Bob Jones be rethought (my opinion, by the way, is that the decision was correct when decided primarily because of Reagan Administration shenanigans which created the real possibility that a decision for Bob Jones could be plausibly interpreted as placing the racist policies of that institution within the parameters of legitimate public discourse. The decision comes out differently if a liberal president urges maintaining the tax exception on the principle of freedom of religion for hateful religions). I like surprises in my movies and academic reading, but the true may simply be that the reason why so many educated Americans are either Solid Liberals or Staunch Conservatives (with a libertarian bent) is that those are the most coherent constitutional positions at this time.
My more serious concern with Orderly Liberty concerns that state of a constitutionalism or the liberal constitutional genre. A great deal of ink has been split over the problems of polarization in American public life. Certainly no reader of Concurring Opinions needs to be informed that the only issue with respect to the upcoming sequester is how bad those harms are likely to be. To get out of our present situation, one of two alternatives must happen. Abraham Lincoln, the patron saint of contemporary American constitutionalism, expressed the first alternative when he asserted, “I believe this government cannot endure permanently, half slave and half free,” but “will become all one thing or all the other.” So, on this vision, our polarization will end when either the United States becomes committed to a liberal regime or Americans become committed to a conservative polity. Fleming and McClain have tirelessly labored to convince their fellow citizens that the best interpretation of American constitutional commitments requires us to become the state envisioned by Solid Liberals. To the extent I find that project tiresome, the only reason is that I was fully convinced long ago that a country of Solid Liberals is a far more constitutionally attractive regime than a country of Staunch Conservatives. My more serious problem is that I suspect the project of persuading Americans to become a predominantly liberal or a predominantly conservative regime is likely to be no more successful than the 1850s project of persuading Americans to become either a predominantly slave regime or a predominantly free regime. If this hunch is correct, and we are not prepared to bring the fully free (or Solid Liberal) regime by using the Union Army, Americans will need a constitutional theory of the center that is more than a simple commitment to judicial minimalism (which in Sunsteinian form is another version of the constitutional theory of the left). Given that the vast majority of constitutional theorists are Solid Liberals or Staunch Conservatives, that constitutional theory will have to be developed by intellectuals whose beliefs are decided not centrist. The good news is that there are more than enough law professors tilling in the constitutional theory fields, so that the mere fact that the fields of liberal constitutional theory strike me as overpopulated is hardly a problem. Still, I do hope we see more constitutional theory in the near future that attempts to figure out how we can better live with the citizens we have than more constitutional theory that tries to persuade the citizens we have to be something else (or claims that, deep down, we all really agree).