Sovereign Citizens and Civic Responsibility
Jim and Linda’s wonderful book is a generous reinterpretation of the major cases of the U.S. liberal constitutional canon, with the aim of underscoring their fit with a reconstituted liberalism that embraces some measure of communitarianism and feminism, and distinctively requires – and nurtures — a healthy dollop of responsibility from its citizens as well as grants them rights. Any number of Supreme Court authored constitutional cases, they argue, that have traditionally been held up to criticism for the ways they create a virtue-free zone of insularity around the exercise of rights, do not in fact do so, and to the contrary, can and should instead be read, as in some ways bolstering rather than destroying civic virtue. Rights to procure abortions, for example, particularly as expounded in Casey, don’t simply grant rights to do bad things, they also promote responsible decision making around issues of life and family. Parental rights to educate one’s children as one sees fit, carries in tow the responsibility for attending to their civic education, and all toward the end of ensuring the children can themselves mature into responsible citizens – and those parental rights, therefore, must as a consequence be shared by the state, which must have the power as well as duty to provide a public education for all. Virtually all such liberal rights, they argue, including modern rights such as the right to marry regardless of sexual orientation, rights to be free of family violence, rights to worship and associate as one wishes, as well as rights to be free of discrimination or abuse by some of those same associative private actors or groups, should all be understood as conferring not only a right, but also a space within which civic responsibility will be nurtured or allowed full force. Conflicts between rights so understood should be resolved in ways that honor their dual function of nurturing or grounding responsibility, as well as insulating behavior in virtue free zones of rights. Rights not only do not conflict with the responsibility at the heart of citizenship, they generally either presuppose it or exist so as to nurture it or allow it to flourish, among other ends.
I would like to offer a friendly amendment to the project. Jim and Linda don’t say as much as perhaps they could about the actual content of citizens’ responsibilities. The adult who can shoulder the responsibilities of citizenship turns out to be the raison d’etre of a goodly number of rights. But what exactly is the nature of the responsibility that citizens bear, qua citizen? Of what does it consist? What is the responsible citizen responsible for? They give a brief account early on:
We aspire to secure the preconditions for democratic and personal self-government: first, the basic liberties that are preconditions for deliberative democracy to enable citizens to apply their capacity for a conception of justice to deliberating about and judging the justice of basic institutions and social policies as well as the common good, and second, the basic liberties that are preconditions for deliberative autonomy to enable citizens to apply their capacity for a conception of the good to deliberating about and deciding how to live their own lives.
The responsibility, then, that rights promote, and that citizens must possess to live good lives, is the responsibility for deliberation over conceptions of justice, over the justice of institutions and social policies, and the common good, and responsibility to develop their own conception of the good and to decide how to live their own lives.
It seems to me that this is a very low bar. It doesn’t demand much of the citizen. And, it’s a low bar, I believe, because the citizen, in Fleming and McClain’s argument, is always opposed to, or contrasted with, or in some other relation to, “the state” or to “government” or sometimes to “the community.” The citizen has rights, both negative rights against the state, and positive rights to something from the state, and has responsibilities for formulating a theory of justice with which to deliberate about the justice of public instittutions, and the responsibility to formulate his own conception of the good life, and the state, in turn, has responsibilities to foster those capacities in the citizen. But the state and the citizen are entirely separable entities.
It seems to me this is a misstep, and one that has consequences for their conception of liberalism. I would think that in a liberal society, citizens distinctively share in sovereignty. The state, and the government, is to some degree constituted by the citizens, perhaps that’s partly what it means to be a citizen of a liberal polity. If so, then maybe we could call the citizen, the citzen-sovereign. And if that’s fair, then the citizen should share in the responsibilities not only of voters called on to exercise judgment, and of individuals to decide for themselves how to live, but the full array of the responsibility of the sovereign, albeit only in small measure.
What might those responsibilities be? Perhaps the responsibilities of the citizen sovereign in a liberal state go beyond the responsibility to engage in common deliberation. A good “sovereign” in any form of government has a duty to care for his or its subjects – to protect them against violence, both internal and external, and in some fashion to promote their wellbeing. A citizen-sovereign, then, in a liberal state in which the sovereign and the people are one and the same, might also have a duty to care, even if only on occasion, for his or her co-citizens, each citizen has a fiduciary like sovereign relation to every other. This element – a responsibility to care for co-citizens — seems to me to be missing from McClain and Fleming’s account, but I think it would fit within it quite naturally.
A citizen-sovereign in a liberal state, we might posit, has a responsibility not only to vote and deliberate, but also to support public institutions that in turn protect all citizens. A citizen-sovereign then has a duty to pay taxes, because that citizen sovereign has a duty to provide the goods the cost of which is covered by the public purse. A citizen-sovereign in a liberal state might also have a responsibility to support public education — to help educate each others’ children, because their future is part of our responsibility – as well as to support other fora of public participation, such as libraries and museums, no less than public hearings and trials. Those public and participatory institutions promote the general welfare, which we are each of us responsible for nurturing. It might not be solely a matter of deliberating jointly regarding the content of justice or the common good. It is also a matter of caring for each other in our citizen-sovereign capacity, and then providing support, through taxes, volunteer labor, or both, of those institutions and goods and provisions that increase the general wellbeing of our neighbors.
An explicit recognition of the sovereign-citizen, and the responsibilities such a citizen has by virtue of his or her sovereignty, might sharpen the conflict between Fleming and McClain’s soft perfectionism, or more generally, their communitarianism, and flavors of liberalism that are indeed more insulating of individual freedom and action than is theirs. Liberal individualism doesn’t have a way to speak of the responsibilities of the sovereign-citizen. As a result, even if rights in a liberal individualist state do provide space for the development of various modes of responsibility, that form of responsibility – the responsibility to care in a sovereign way for one’s co-citizens – is not included: rather, it is the citizen as voter, or the citizen as deliberator, or the citizen as occasional participant in government, but the citizen is nevertheless apart from and different from the government that grants rights. In a truly liberal state, however, or at least in a truly liberal state that has embraced McClain and Flemings soft communitarianism and feminism, as well as a liberal regard for individual liberty, the citizen is constitutive of the state and of the government, not apart from it. She or he is responsible, then, in small measure, and only on occasion, but nevertheless shoulders some responsibility, for the wellbeing, the equal education, the equal opportunity, and the safety and security as well as the conditions of liberty, of all.