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Author: James Fleming

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Public Values, Civic Virtues, and the Thinness of Democratic Persuasion: A Comment on Corey Brettschneider’s When the State Speaks, What Should It Say?

James E. Fleming & Linda C. McClain

We appreciate the opportunity to comment on Corey Brettschneider’s fine book, When the State Speaks, What Should It Say? (Princeton University Press, 2012). We benefitted from our prior exchange with him in the recent Concurring Opinions symposium concerning our book, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013). This comment is a continuation of that exchange. He and we there observed that our books are “kindred in spirit.” Our remarks here, like Robin West’s post, may confirm Paul Horwitz’s prediction that Brettschneider’s “real burden will be defending the book from its supporters.”

Both Brettschneider’s book and our book grow out of the tradition of John Rawls’s political liberalism. As such, both are committed to governmental promotion of the public values of free and equal citizenship. Both works emphasize the distinction between permitted governmental persuasion and prohibited governmental coercion. Both contemplate that government may engage in what he calls “democratic persuasion” not only by governmental speech but also by conditioning benefits or subsidies upon a group’s not discriminating on certain bases such as race, sex, or sexual orientation.

But the two books differ in significant ways, and the differences drive our reservations about his book. First, Brettschneider’s book focuses on the First Amendment and thus upon what government should say: how it can simultaneously protect expression and promote equality. That is the subject of only one chapter in our book. Our book is concerned more generally with government’s responsibility to engage in a “formative project” of cultivating civic virtues and capacities necessary for democratic and personal self-government. Read More

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Ordered Liberty: Further Reflections

James E. Fleming & Linda C. McClain

We have benefitted enormously from the rich and fruitful exchange in the Concurring Opinions symposium on our book, Ordered Liberty: Rights, Responsibilities, and Virtues. We appreciate all the thoughtful posts, which have provided wonderful opportunities for further reflections and for refinements and clarifications of our arguments. We fully expect to continue the dialogue with many of the participants and to develop our arguments further in future work.

Thanks especially to Danielle Keats Citron for facilitating the exchange and to Frank Lancaster for technical support.

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On the Responsibilities and Sovereignty of Citizens: Response to Robin West

James E. Fleming & Linda C. McClain

We greatly appreciate Robin West’s characteristically supportive and constructive yet challenging post concerning our book, Ordered Liberty: Rights, Responsibilities, and Virtues. We are deeply indebted to her for helping to set us down the path of working up a liberal constitutional theory that takes responsibilities and virtues as well as rights seriously. Her powerful “Foreword: Taking Freedom Seriously” in Harvard Law Review was a profound challenge to liberal theories that “take rights seriously” but seem to insulate right-holders from responsibilities. Indeed, that is one of the central problems we address in our book. Whereas some of the other commentators in this symposium have argued that our constitutional liberalism is too thick regarding encouraging responsibility or inculcating civic virtues, West says that it is too thin.

We characterize our constitutional 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.” (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. Read More

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“Mutual Adjustment” of Conflicts between Liberty and Equality versus Winning It All: Response to Rick Garnett

James E. Fleming & Linda C. McClain

We appreciate Rick Garnett’s kind words about our book, Ordered Liberty, especially since he probably disagrees with us more than any of the other participants in this symposium. He expresses the worry that what we call “mutual adjustment” of conflicts between liberty and equality–especially in the clash between freedom of religion and securing equality for gays and lesbians–is merely prudential delay of “congruence” between liberal virtues and values inculcated by government and those inculcated in civil society, including by conservative religious associations and religious families.

In situations involving clashes of rights, or more precisely, clashes of higher order values underlying rights, we do not simply argue, contrary to Garnett’s position, that the liberal side wins. Nor do we say, as he evidently would, that the conservative side wins. We suggest that one way to resolve or at least mitigate the clash is to secure the status of equal citizenship for gays and lesbians while also granting exemptions on grounds of religion. Each side gives up something through the mutual adjustment rather than one side or the other winning it all. Read More

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Civic Virtues, Public Values, and Political Liberalism: A Further Response to Corey Brettschneider

James E. Fleming & Linda C. McClain

We thank Corey Brettschneider for his further post on political liberalism, civic virtues, and responsibility. He makes a number of claims about what political liberalism does and does not permit. We should make clear that in our book, Ordered Liberty, we develop a constitutional liberalism (for the American constitutional order) by analogy to John Rawls’s political liberalism. We do not elaborate political liberalism as such nor do we claim to be explicating Rawls’s particular formulation of it. Nonetheless, for the reasons stated below, we believe our constitutional liberalism is compatible with Rawls’s view. Read More

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The Recipe for Ordered Liberty: A Further Response to Robert Tsai

James E. Fleming & Linda C. McClain

We appreciate Robert Tsai’s gracious and clever post in response to our initial post concerning the substance of our constitutional liberalism. The metaphor of constitutional theory as recipe is well worth pondering. We are gratified that, whether or not he has reverse engineered from the theory to the recipe correctly, he thinks that “[w]hat [we] have cooked tastes pretty good.”

Tsai is correct that our book is an “effort to bridge not only intellectual divides but also partisan ones.” This probably lends itself to efforts, like his, to detect or measure the “parts” of liberalism, republicanism, and feminism that make up our civil liberalism. For example, as we take up prominent critiques of liberal rights, and liberalism more generally, made by communitarians, civic republicans, and civil society-revivalists, we point to common ground and show how civic liberalism has elements – or “parts” – that these critiques overlook. Or, when those critiques fault elements of liberalism that we believe are vital to and consonant with the U.S. constitutional order, we explain why, to use Tsai’s metaphor, they should be part of the mix. In this sense, we certainly are not cooking from scratch because we are working within a particular political and constitutional order and not simply trying to serve up the best possible political theory in the best of all possible worlds. As we say, in our response to Mark Graber, our constitutional liberalism is a form of “constitutional theory of the center.”

Another way to answer Tsai is to say that in “cooking” a theory, one doesn’t begin with or work from a recipe with definite doses of certain named ingredients. Instead, one concocts a stew from many ingredients, responding to this problem, anticipating that objection, drawing upon this argument from this source, building upon that argument from another source, and trying to pull it all together as an appealing stew. Once the stew is cooked, and the dinner guests conclude that it “tastes pretty good,” if one guest asks for the recipe the cook may not be able exactly to specify the exact portions of each ingredient! Read More

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Constitutional Theory of the Center: Response to Mark Graber

James E. Fleming & Linda C. McClain

We thank Mark Graber for generously blogging not only on this week’s concurring opinions symposium on our book, Ordered Liberty, but also on last week’s balkinization symposium on it. Despite his high praise for our book in both places, he confessed to “some impatience” with our theory there because of our concern to work up multiple justifications for controversial basic liberties and to finding projects like ours “tiresome” here. Last week, we urged him to develop more patience with and even to join our project.
http://balkin.blogspot.com/2013/02/ordered-liberty-response-to-mark-graber.html.
We will not repeat those arguments here. Instead, we shall respond to his call for “constitutional theory of the center.”

Graber begins by painting a picture of increasing polarization in American politics and American constitutional visions, contrasting Solid Liberals with Staunch Conservatives as described in a 2011 Pew Research Center typology, the latest in a series of similar typologies. http://www.people-press.org/2011/05/04/beyond-red-vs-blue-the-political-typology/.
Graber portrays our theory as trying to “work out the precise constitutional vision of Solid Liberals,” although he acknowledges that our constitutional liberalism is importantly different from the theories of many contemporary liberals. His serious concern is with how to get out of our present situation of polarization in American public life, including in constitutional theory. His proposal is that “Americans will need a constitutional theory of the center.” Read More

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More on Encouraging Patriotism: A Further Response to Kent Greenfield

James E. Fleming & Linda C. McClain

In his further response to our book, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013), and our post, Kent Greenfield says that he is “surprised that Jim and Linda come down on the pledge requirement where they do.” He continues: “I would have thought that they, in Catherine’s words, would have seen it [as] inconsistent with their ‘framework that incorporates critical thinking with mindful patriotism in which thinking students can challenge the ideas presented.’” As a normative matter, we do indeed see a pledge requirement just as Catherine Ross has put it.

We write to clarify where we “come down on the pledge requirement” in our previous post. We did not say that we proposed or supported Greenfield’s hypothetical law that “any school receiving federal funds is required to begin the school day with a Pledge of Allegiance, in assembly, led by the Principal or her designee.” We simply said two things. One, such a law is constitutionally permissible under our analysis of current Supreme Court doctrine concerning “unconstitutional conditions” (doctrine we ourselves do not wholly endorse). And two, such a law would not amount to coercing “mandatory patriotism” because it would not be coercing any students actually to say the pledge, much less actually coercing their beliefs. It would come within encouraging patriotism. We maintain this even though we, like Greenfield, appreciate Justice Kennedy’s opinion in the school prayer case of Lee v. Weisman. But there are differences between a school’s holding prayers during school or school-sponsored events, as in Lee, and a school’s beginning the day with the opportunity to say the pledge of allegiance, differences rooted in concern for freedom of religion and recognition of the inappropriateness of governmental persuasion concerning religious belief.

We appreciate Max Eichner’s distinction between Constitution Day and a pledge requirement. Still, we would argue that even when people say the pledge of allegiance, they are not being coerced into “mandatory patriotism.” (That was Greenfield’s term, not ours.) When we say the pledge of allegiance, we do so with considerable “critical thinking” about our Constitution and our country. We pledge allegiance “to the republic” and to “one nation, indivisible, with liberty and justice for all” as we conceive it, understood critically but in its best light, not as an external authority conceives it. We would not deny that devotion and reverence are appropriate elements of patriotism and constitutional faith. At the same time, so too is the willingness to examine critically the gap between constitutional ideals and practices and to try to close that gap (what Jack Balkin refers to as the intergenerational project of “constitutional redemption”). The form of civic education that we support, and that Catherine and Max also support, aims to provide people with the skills to do so.

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The Substance of Constitutional Liberalism: Response to Robert Tsai

James E. Fleming & Linda C. McClain

We thank Robert Tsai for his praise of our book, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) and for raising questions concerning “what work . . . the language of civic republicanism do[es] in [our] theory.” We presented our theory as a constitutional liberalism, developing it by analogy to John Rawls’s political liberalism. We also characterized it as a synthesis of liberalism, civic republicanism, and feminism. Finally, we called our constitutional liberalism a “mild form of perfectionism,” an alternative to “liberal neutrality” and to comprehensive liberal perfectionism. Despite these formulations, Tsai states that “it is possible to read [our] thoughtful book as requiring the use of civic republicanism as the primary language through which to fight over constitutional rights.” That would be a misreading. Through responding to Tsai’s questions, we shall sketch the substance of constitutional liberalism elaborated in the book.

At the outset, we should observe that theories like ours – which articulate a third way between warring alternatives (e.g., “liberal neutrality” versus comprehensive liberal perfectionism) or synthesize traditions that are commonly viewed as conflicting (e.g., liberalism versus civic republicanism) – are bound to generate questions concerning how thin or thick they are, whether they are reducible into one or the other of the conflicting traditions, and the like. To illustrate the first, a proponent of a comprehensive liberal perfectionism would find our “mild form of perfectionism” too thin, while from the standpoint of liberal neutrality it would seem too thick. (See our responses to Sotirios Barber and Eric Blumenson, respectively, in the recent symposium on the balkinization blog: http://balkin.blogspot.com/2013/02/ordered-liberty-response-to-sotirios.html and http://balkin.blogspot.com/2013/02/ordered-liberty-response-to-eric.html.) Tsai illustrates the second: he reduces our Rawlsian constitutional liberalism into the “language,” “vocabulary,” or “grammar rules” of civic republicanism.

Again, Tsai opens by asking: “[W]hat work does the language of civic republicanism do in [our] theory?” “One possibility,” he suggests, “is that civic republicanism organizes constitutional debate.” He continues: “It operates as a set of rules of exclusion, putting certain kinds of arguments off limits while including other kinds of arguments if they are properly constructed.” Here, we assume he is alluding to our characterization of our theory as a constitutional liberalism by analogy to Rawls’s political liberalism, not a comprehensive liberal perfectionism. Read More

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On Civic Virtue and Encouraging Patriotism: Response to Kent Greenfield

James E. Fleming & Linda C. McClain

We are deeply grateful to Danielle Keats Citron for organizing this symposium on our book, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013). We look forward to the exchanges with the many thoughtful scholars she has assembled for this occasion.

We appreciate Kent Greenfield’s kind words about our book in his post “on civic virtue and mandatory patriotism.” As Greenfield acknowledges, we do not view his bête noire, Constitution Day, as “coerced patriotism” and he is right that we think civic education concerning the Constitution is generally a good thing. At the same time, in our discussion of civic education, we make clear that we support “critical reading” and a “warts and all,” “teach the conflicts” approach to the study of the Constitution and the teaching of American history. (123) Even though we ourselves take such an approach to the Constitution, we would no more object to the fact that most observances of Constitution Day on September 17 “in fact do so with celebratory rather than critical curricula” than we would object to the fact that most government-supported observations of Independence Day on July 4 are celebratory rather than critical.

Greenfield poses the question, “Does our judgment of what constitutes a valid exercise of the federal government’s power to encourage civic virtue depend on the content of what is being encouraged?” Our answer is, yes, it most certainly does. As we put it, quoting the Supreme Court, government may “inculcate fundamental values necessary to the maintenance of a democratic political system.” (120) (We would add that much civic education is carried out by state governments, not the federal government.)

In his first hypothetical, Greenfield asks: “If Congress passed a law saying ‘no school receiving federal funds is permitted to offer a course about Islam,’ wouldn’t it be clearly unconstitutional?” This is a puzzling question, given that our book supports government carrying out civic education to prepare children for good citizenship as well as success in life (alluding to Brown v. Board of Education). Thus, a school could, consistent with constitutional restrictions on the separation of church and state, offer a course that taught students “about” religions, although it could not have a civics curriculum that insisted that all students learn and affirm a Biblical model of good citizenship.

Beyond that, his first hypothetical statute would clearly run afoul of commitments to teaching tolerance and respect for diversity and to securing equal citizenship for all. A law banning a course “about” a particular religion evokes the “anti-Sharia laws” that some states adopted and others have considered. For example, the sponsor of Oklahoma’s now-defunct referendum banning Sharia law explained that the ban was necessary because of “a war for the survival of America” and that “Oklahomans recognize that America was founded on Judeo-Christian principles.” Seventy percent of Oklahoma citizens voted in favor of a state constitutional amendment providing: “The courts shall not look to the legal precepts of other nations and cultures. Specifically, the courts shall not consider international law or Sharia Law.” The Tenth Circuit upheld the federal district court in enjoining the amendment, pointing out that it singles out “only one form of religious law – Sharia law,” and thus “discriminates among religions.” (After the Tenth Circuit ruling, some states have considered or passed laws that do not single out any particular religious law, but instead provide that courts shall not consider or apply a rule of comity if foreign law conflicts with public policy or impairs rights that residents have under the state or federal constitution.)

Greenfield’s second hypothetical – requiring schools receiving federal funds “to begin the school day with a Pledge of Allegiance, in assembly, led by the Principal or her designee” – would be permissible under our analysis. The law would be conditioning federal funding on the schools’ beginning the school day with a pledge of allegiance, but it would not be coercing any students actually to say the pledge, much less actually coercing their beliefs. (We should reiterate what we said in the book, that we do not wholly endorse the Supreme Court’s First Amendment doctrine concerning “unconstitutional conditions.” (114))

We are unclear whether Greenfield thinks that civic education is a “bad thing,” or why he would think that it is in conflict with the teachings of West Virginia Board of Education v. Barnette. That case leaves the government considerable latitude to encourage – through instruction and persuasion – though not to coerce civic virtues.