Theory as Recipe
posted by Robert Tsai
I appreciate Jim’s and Linda’s clarifications of their project. If intellectual thought is always a mixture of ideas that have come before, we might think of constitutional theory as a recipe. What Jim and Linda have cooked tastes pretty good, and I want to know how much of what got tossed into the pot. I’m curious how much and what kinds of liberalism, republicanism, and feminism are a part of their theory: how these ideas interact, which parts seem stronger in which contexts, and why. Their response suggests that their recipe is equal doses of all three, but I’m not so sure. I might not be the only one.
Mark Graber, in his post, read the book to mean something like: 4 parts liberalism (understood as congruence with contemporary liberal policy preferences), 4 parts feminism (either congruence with political party or intellectual community), 1 part republicanism (understood as facilitating dialogue and permitting maximum policy and moral preferences to sway outcomes).
I read their “mild form of perfectionism” (p. 118) as something closer to: 2 cups of liberalism (understood as liberal defense of rights as foundational to citizenship), 4 cups of civic republicanism (structuring debates over rights), 2 heaping tablespoons of feminism (where relevant to citizenship perfecting activities). I treat the book as an effort to bridge not only intellectual divides but also partisan ones, i.e., not simply liberal preferences masking as legal theory.
The authors object to any description that their theory is procedural, and that’s fine. I merely offered that term as one way of understanding how civic republicanism might be working in their theory. And I meant it in the same way that John Hart Ely’s theory has sometimes been described as procedural, though of course it, too, yielded substantive constitutional norms and sought to shape outcomes. But for Ely (and I thought perhaps for Jim and Linda as well, though I may be mistaken), even substantive rights have to be ultimately brought back to foundational organizing principles (deliberation, virtue, responsibility).
Perhaps this shows my own inclinations, but I gravitated toward the “shared sovereignty” discussions as most interesting because the approach accords with my own sense that (1) rights must be articulated, but (2) judicial definition of rights can and should be done in ways that, to the extent possible, preserves the ability for communal dialogue (understood broadly) to continue. It also strikes me as fertile ground for further frameworks, adjudicatory principles, and justifications to be developed that might maximize those civic virtues that can foster responsible exercise of rights and robust debate over the meaning of the good life. Jim’s and Linda’s pullback from these parts of the book–that they are not celebrating such solutions and are not trying to maximize any particular civic virtues–leaves me puzzled and mildly disappointed (though possibly through no fault of their own).