Archive for the ‘Symposium (Ordered Liberty)’ Category

Ordered Liberty: Further Reflections

posted by James Fleming

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.

  March 4, 2013 at 4:39 pm   Posted in: Symposium (Ordered Liberty)   Print This Post   One Comment

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

posted by James Fleming

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 the rest of this post »

  March 4, 2013 at 8:45 am   Posted in: Symposium (Ordered Liberty)   Print This Post   No Comments

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

posted by James Fleming

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 the rest of this post »

  March 3, 2013 at 3:37 pm   Posted in: Symposium (Ordered Liberty)   Print This Post   No Comments

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

posted by James Fleming

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 the rest of this post »

  March 3, 2013 at 12:21 pm   Posted in: Symposium (Ordered Liberty)   Print This Post   No Comments

Civic Education and Teaching at Home

posted by Aaron Saiger

I’m delighted to have been invited to be a guest on this forum. I thank Danielle for the invitation and the blog’s other authors for their hospitality.

I thought I’d begin by chiming in on the recent exchange over Jim Fleming and Linda McClain’s proposal to require homeschooled students to participate in civics education within public schools. The ur-text here, of course, is Justice McReynolds’ claim for the Court in Pierce v Society of Sisters that “The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only.” McReynolds identifies the central issue as the choice of who does the  teaching, rather than what is taught. Following his lead, I can easily accept Catherine Ross’s proposal to set civics curricula that all, including homeschoolers, much teach; but I reject that  teachers must be state agents. Abolishing families’ right to opt out of public instruction is too close to the state’s ideological conscription of its children.

Pierce is in bad odor in some circles. Dean Chemerinsky, for example, recently reiterated his long-held position that it should be abandoned in service of educational equity. Also, as both a doctrinal and theoretical matter, one need not apply Pierce to home schoolers. Private schooling, unlike  home schooling, at least guarantees children access to adults and adult ideas from some source other than their parents.

But I stand up for Pierce‘s claim that the choice of teachers is fundamental to liberty. And this does extend to homeschoolers. Indeed, it’s precisely for a reason suggested by Catherine that I recoil at forcing homeschooled students into public schools: Civic education is accomplished at least as much by modeling for children what liberty, citizenship, and republicanism are as by telling them what they are. Coercing all children to attend to agents of the state, who will explain to them what it means to be a citizen, models for children a grossly illiberal civic orthodoxy. That lesson will be learned even if the content of those agents’ civics lessons are liberal, pluralist, and tolerant.

  March 3, 2013 at 12:52 am   Posted in: Symposium (Ordered Liberty)   Print This Post   4 Comments

Do Civic Virtue and Responsibility Go Beyond Political Liberalism?

posted by Corey Brettschneider

Thanks to James Fleming and Linda McClain for their response to my post. The exchange has helped to elucidate the many fine points of their book. I appreciate too the various ways in which our projects overlap and thank them for continuing to bring them out.

I certainly agree that Fleming and McClain endorse a political liberal ideal of free and equal citizenship and that they often rely on an analysis that invokes this ideal in analyzing cases. They want to support free and equal citizenship. The most crucial concern, however, from my post is that the promotion of virtue may go beyond supporting the political liberal values of free and equal citizenship. Do Fleming and McClain mean to define virtue in that is merely synonymous with the political liberal ideal of free and equal citizenship, or is the concept of virtue distinct? Although they say that “we will not attempt here to persuade him about why it is possible to promote civic virtue without sliding into promoting moral virtues simpliciter and comprehensive visions of the good life,” I think this is the central challenge for their book, in that the issue of promoting virtue highlights one of their unique and important contributions to political theory. Read the rest of this post »

  March 2, 2013 at 1:25 pm  Tags: Symposium (Ordered Liberty)  Posted in: Symposium (Ordered Liberty)   Print This Post   No Comments

On Civic Education, Critical Thinking, and Civic Empowerment: A Response to Catherine Ross

posted by Linda McClain

James E. Fleming & Linda C. McClain

We greatly appreciate Catherine Ross’s gracious, thoughtful, and supportive intervention into the conversation between Kent Greenfield and us concerning civic education and what he (not we) called “mandatory patriotism.” She nicely encapsulates our position (as well as hers) and makes cogent criticisms of his view that we would adopt. She is right that we contemplate critical thinking when it comes to the Pledge of Allegiance and Constitution Day just as we do in civic education more generally: that we articulate “a framework that incorporates critical thinking with mindful patriotism in which thinking students can challenge the ideas presented and hold authority figures to the ideals they tout – even where the flag or Constitution ‘is our own.’”

We would like to respond to Ross’s observation concerning our proposal that government should require that homeschooled children should “come into the public schools to learn civics.” In our book, we state: “all children, including homeschooled children, should participate in civic learning in schools.” (144). Ross applauds our proposal “in principle,” but counters that “the real civics lessons in schools are not communicated through formal classes” (although she thinks schools should offer them), “but in the lessons learned by doing and acting – exercising speech rights, debating, and receiving adult guidance about resolving conflicts when schools make the best use of ‘teachable moments.’” While we would not draw such a sharp distinction between classroom learning and “doing and acting,” we agree with Ross about the importance of the entire school environment. Indeed, this is a basic point made in the consensus document that we discuss in Chapter 5 of our book, “The Civic Mission of Schools” (Carnegie Corporation of New York and CIRCLE, 2003). That report states: “in addition to civic education programs, school environments and culture are critical to whether and to what extent young people gain civic skills and attitudes.” Thus, the “most effective programs” are in schools that “infuse a civic mission throughout the curriculum; offer an array of extracurricular activities; and structure the school environment and climate so that students are able to ‘live what they learn’ about civic engagement and democracy.” (“The Civic Mission,”  21). We completely embrace this notion of a civic mission “infusing” schools. However, we made our proposal about homeschooled children coming to school for civic learning in our sketch of how constitutional liberalism would seek to “reconcile the dual authority of parents and children to educate children.” (Ordered Liberty, 139)

In her instructive work on the vital importance of teaching tolerance, Ross has proposed that such teaching could take place in the home but with “materials on tolerance provided by the schools.” We rejected a similar proposal with respect to civic education. One reason was the possibility that homeschooling parents who disagreed with the substantive messages of the curriculum might undermine them. In addition, we expressed concern that: “Even if parents willingly conduct such lessons, homeschooled children will lack the opportunity to hone skills of critical thinking through studying civics in the context of a classroom and, together with other students, working out how ideals and principles apply to particular contemporary problems.” (144) In effect, our reason for requiring children to spend some time in school is so they will have a chance to participate in (as Ross puts it) “lessons learned by doing and acting.”

In closing, we would bring up an aspect of civic education not yet mentioned in this online symposium. Schools, through civic education, can play a role in addressing – as “The Civic Mission of Schools” puts it – the “exceptionally large” gap in the United States between the best- and worst-prepared students in terms of their civic and political knowledge.  Schools can address “troubling inequalities in civic and political engagement,” (14) or what Meira Levinson calls, in her book, No Citizen Left Behind (2012), the “civic empowerment gap” between more advantaged and less advantaged children (based on wealth, race, and whether or not they are native-born or nonnnative-born). In their work on civic education, civic liberals – and other proponents of civic education – should be mindful of this inequality and of the potential for schools to address it.

  March 2, 2013 at 12:58 pm   Posted in: Symposium (Ordered Liberty)   Print This Post   No Comments

Civic Liberalism’s Conception of Patriotism includes Critical Thinking: Response to Maxine Eichner

posted by Linda McClain

James E. Fleming & Linda C. McClain

We thank Maxine Eichner for her thoughtful posts concerning Constitution Day, the Pledge of Allegiance, and our book, Ordered Liberty. Before offering some concluding thoughts about our disagreement with her about the Pledge, we want to bring out how close her conception of civic education and of civic virtues in her book, The Supportive State, is to ours. We agree entirely with the content of the “program” she sketches in her post of “what commitments” an “adequate but not excessive civic education” would “seek to foster.” We believe that this type of civic education is consistent with the best contemporary literature on civic education (which we draw upon in Chapter 5 of Ordered Liberty, “Government’s Role in Promoting Civic Virtues”).

Now for the Pledge: Eichner agrees with us in recognizing that observing Constitution Day does not coerce what Kent Greenfield called “mandatory patriotism,” but is fully compatible with encouraging what we called “critical thinking” about the Constitution. But she worries that recitations of the Pledge of Allegiance encourages “uncritical allegiance.” She then gives examples, including support for George W. Bush’s Iraq War and support for laws that “will disenfranchise massive numbers of citizens in the guise of protecting the state from voter fraud.” But the problem in these cases is not uncritical allegiance to our republic but the substance of the views that support these measures. For example, citizens who support “voter fraud” regulations are not saying, we support these laws because we uncritically accept what our leaders tell us; instead, they are saying (wrongly) that there is rampant voter fraud in this country enabling Democrats to steal elections and we have got to put a stop to it! We need to build critical thinking into our conceptions of patriotism and allegiance just as we need to do so into our observance of Constitution Day.

On September 11, 2001 and in the years following, we lived on the Upper West Side of Manhattan, a bastion of liberalism. Our then young daughters attended a public school that began every day with a recitation of the Pledge of Allegiance. That same school also had a curriculum that cultivated critical thinking and aimed at teaching tolerance and respect for difference. Further, one of us (McClain) was on the school’s Diversity Committee and recalls that the Committee’s film series for parents and children selected and showed films about prejudice toward and distrust and vilification of Muslim Americans in the United States in the wake of 9/11 and President George Bush’s “war on terror.” We recall that some Upper West Side liberals criticized the recitation of the Pledge precisely on the ground that Eichner does in her post. One of us (Fleming) vividly recalls having a “Michael Sandel” moment concerning liberals and patriotism: thinking, there they go again, playing right into the conservative arguments that liberals are unpatriotic, that they hate America, that they “blame America first,” and all the rest of it. Like Sandel, Fleming believes that civic liberals need to reclaim patriotism (with critical thinking and critical allegiance) from the conservatives along with civic education and the inculcation of civic virtue. The other of us (McClain) shares this belief, but also believes, in light of the concerns Eichner raises, that it would inform the debate over the Pledge to learn more about the actual impact – if any – it has on school children and on their understanding of patriotism.

  March 2, 2013 at 10:57 am   Posted in: Symposium (Ordered Liberty)   Print This Post   No Comments

Why the State Can – and Should – Promote Public Values as well as Civic Virtue: A Response to Corey Brettschneider

posted by Linda McClain

James E. Fleming & Linda C. McClain

We appreciate that Corey Brettschneider identifies with us as “kindred spirits in the project of developing a liberalism that is both rights protecting and also promotes liberal values.” We also appreciate that he views our book as offering a “powerful challenge” to a “neutralist view” of what a liberal democracy can do to promote its “central values” while also protecting “basic rights.” And we look forward to participating in the upcoming symposium on Concurring Opinions about his book, When the State Speaks, What Should It Say? We are concerned, however, to clear up his evident misunderstandings concerning our book. Thus, when he suggests that his own book has “distinctive features” that “might give us different resources in replying to critics” of the liberal project in which he believes we are “kindred spirits,” he seems to underestimate the resources our own book provides! Namely, he seems to conclude that we view the liberal state’s project as encouraging responsibility and promoting civic virtue, to the exclusion of promoting public values and free and equal citizenship. This is not correct: the fundamental substantive commitment of our Rawlsian constitutional liberalism is to secure the status of free and equal citizenship for all, even though, admittedly, our book’s subtitle is “Rights, Responsibilities, and Virtues.” Read the rest of this post »

  March 2, 2013 at 7:16 am  Tags: Ordered Liberty (symposium); constitutional law; First Amendment; equal citizenship  Posted in: Symposium (Ordered Liberty)   Print This Post   No Comments

Once More on the Pledge, Patriotism, and Ordered Liberty

posted by Maxine Eichner

I’ve continued to enjoy the discussion of Linda and Jim’s book, and particularly of the Constitution Day/mandatory patriotism issue. And as much as I liked the book, Jim, I’ve got to side with Kent on the pledge issue. I took it from your original set of comments that you would see schools encouraging students to say the pledge as permissible though not (to borrow Kent’s phrasing of the issue) a “Good Thing,” but you’ve now clarified that you’re pro-pledge. Although I have myself argued that a vigorous liberal democratic polity requires particular virtues in its citizens that the state should foster in public schools (and in fact argue this in chapter 5  here),  I think the pledge encourages exactly the kind of uncritical allegiance that threatens a vigorous liberal democracy, and is particularly harmful here in the U.S.

We have only recently extricated ourselves from the Iraq War, a war that we entered because the country far too credulously accepted the statements of its leaders, which caused considerable loss of life, as well as an outlay of trillions of U.S. dollars even though more than one-fifth of our children are in poverty. And as we speak, legislatures in state after state, without widespread citizen outcry, are passing regulations on voting that will disenfranchise massive numbers of citizens in the guise of protecting the state from voter fraud. Given these examples and more, it seems clear to me that our problem with respect to civic virtues is not that our citizens are not patriotic enough, but rather that their patriotism is too uncritical, too accepting of what their leaders tell them, and that it causes them to support government without measuring it against important liberal democratic ideals. Encouraging the pledge, in my view, is far more likely to make this situation worse not better.

Kent will, I’m sure, point out that my disagreement with Jim highlights the fact that what I’m calling civic liberalism and he calls civic republicanism, in promoting education for civic virtue, requires some determination of what virtues citizens need, and that this is a question to which there are no definitive answers. That’s certainly true, but this isn’t an adequate reason to reject purposeful civic education. As so many liberal theorists have come to recognize in recent years, any tenable liberal democracy requires some virtues in its citizens for it to function relatively well, and these virtues don’t develop simply by chance. Liberal neutrality is therefore not only impossible (liberalism, as the later John Rawls showed, necessarily embodies a set of non-neutral commitments, albeit limited ones), but the failure to aim higher for our young citizens leaves us with a status quo that also has significant costs, and which are imposed on particular groups. At a time in which higher percentages of US citizens believe that religious leaders should assume a strong political role than in other countries, and given that a number of these leaders advocate positions based on their religious philosophy that cannot be justified on grounds shared outside their religion, this is no academic debate. And at a time in which only nine of our states permit same-sex couples the right to marry, a denial which, it’s become abundantly clear, can’t be justified as a matter of public reason, the status quo imposes huge costs, as well, on particular groups of disfavored citizens.

Read the rest of this post »

  March 1, 2013 at 7:28 pm   Posted in: Symposium (Ordered Liberty)   Print This Post   No Comments

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

posted by James Fleming

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 the rest of this post »

  March 1, 2013 at 6:15 pm   Posted in: Symposium (Ordered Liberty)   Print This Post   No Comments

Constitutional Theory of the Center: Response to Mark Graber

posted by James Fleming

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 the rest of this post »

  March 1, 2013 at 6:03 pm   Posted in: Symposium (Ordered Liberty)   Print This Post   No Comments

“Mutual Adjustment” as (merely) congruence delayed

posted by Rick Garnett

I am delighted by and grateful for the opportunity to participate in the Concurring Opinions symposium on Jim and Linda’s engaging, important, and challenging new book, Ordered Liberty.  And, the contributions so far have managed the tough task of enriching what was already the very welcome opportunity to read and think about the book.

I have — like Linda and Jim, though I’m sure not with their success — tried to think and write about “civil society” and “seedbeds of virtue” (here), about the tension and even conflicts between liberty and equality (here), and about the moral and legal rights of parents to direct and control — within some limits — the education of their children (here). Ordered Liberty has given me a needed opportunity to re-visit and re-think some of what I’ve said and thought, and I’m sure that process will continue.

At the end of the day, and at the end of the book, I suppose there’s no avoiding the fact that I continue to have doubts about “constitutional liberalism” as Jim and Linda present and defend it; I continue to think that the Constitution is best regarded primarily, and more prosaically, as a mechanism for (limited-purpose and limited-reach) lawmaking, the operation of which is constrained by “negative” rights-protections; I think that the claims of families, associations, and churches to remain out-of-sync with current political majorities, or with liberalism more generally, are even stronger than Jim and Linda acknowledge; and I think that those scholars who “are preoccupied with the limited institutional capacities of courts” are, well, probably right to be so.  But, it probably does not add much to this symposium simply to report my hard-headedness or general reservations.

So, a more focused thought on a particular part of the book:  In Chapter 6 (“Conflicts between Liberty and Equality”), Linda and Jim use four familiar cases (Roberts, Dale, Bob Jones, and Christian Legal Society) to “illustrate the struggles between the formative projects of civil society and government and between competing visions of diversity and pluralism.”  Fair enough — these case do indeed illustrate these struggles.  But, at the end of the chapter, and at the end of book, I didn’t feel like I had been given or had found what I thought was promised, i.e., “a framework for resolving clashes of rights so as to promote ordered liberty and equality citizenship for all.”  That is, despite the use of the term “mutual adjustment”, it did not appear to me that what was presented in the concluding pages and paragraphs of the chapter was so much a “framework” for resolving the described clashes through pluralism-appreciating “adjustment” as it was a declaration that the ultimate and to-be-desired resolution of these clashes in favor of the “liberal” position will often be facilitated by “prudential” “interim” strategies like religious exemptions.  To be told by the liberal-constitutional state that — not to worry — it is willing to go slow in bringing dissenting or just different associations into congruence will not, I imagine, be very comforting to those who wonder why that state assumes it has the legitimate authority to insist on congruence now or later.

  March 1, 2013 at 4:34 pm   Posted in: Constitutional Law, First Amendment, Religion, Symposium (Ordered Liberty)   Print This Post   No Comments

Democratic Values v. Virtues: Brettschneider on Ordered Liberty

posted by Corey Brettschneider

How can a liberal democracy promote its central values, such as autonomy and non-discrimination, at the same time that it protects basic rights, such as free speech? One common view is that these two goals are incompatible. According to this view, free speech rights commit liberal democracy to “neutralism,” which prohibits favoring any values. Under a neutralist approach, liberal democracy cannot promote its core values of autonomy and non-discrimination. It has no role in encouraging responsibility and virtue among its citizens.

James Fleming and Linda McClain offer a powerful challenge to the neutralist view. They propose an account of “autonomy as responsibility” that reconciles the two goals of protecting rights and promoting a set of public values and virtues. Liberal democracy upholds the rights of citizens out of respect for their autonomy, or their ability to use their reason freely to choose their own ends. For citizens to be able to make decisions as autonomous agents, they must have the right to choose their religion, associations, and political positions. But it is also important in an autonomy respecting regime that the government cultivate and encourage good decision-making. It would be pointless to respect autonomy if no actual people exercised their autonomy well. The government thus has an obligation to promote the capacity of citizens to make better and more responsible decisions. The government, including the Supreme Court, should pursue the twin aims of protecting rights and promoting individual autonomy and responsibility. This view differs from perfectionist theories, which advance particular comprehensive doctrines, and neutralist accounts, which refuse to promote values altogether. Read the rest of this post »

  March 1, 2013 at 2:30 pm  Tags: Free Association, free speech, Political Theory, Symposium (Ordered Liberty)  Posted in: Symposium (Ordered Liberty)   Print This Post   No Comments

More on Encouraging Patriotism: A Further Response to Kent Greenfield

posted by James Fleming

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.

  March 1, 2013 at 12:42 pm   Posted in: Symposium (Ordered Liberty)   Print This Post   No Comments

Sovereign Citizens and Civic Responsibility

posted by Robin West

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. Read the rest of this post »

  March 1, 2013 at 9:08 am   Posted in: Symposium (Ordered Liberty)   Print This Post   No Comments

More on Mandatory Patriotism

posted by Kent Greenfield

I’ve enjoyed reading the various responses triggered by my initial post earlier in the week admitting to my doubts about Constitution Day and mandatory patriotism in general.  My views are perhaps more tenuous than my first post seemed, judging from the tenor of the responses.  But I wanted to offer a couple of quick additional thoughts.

It looks like there have been at least three views expressed on my hypothetical on a mandatory pledge of allegiance as a condition of federal funding.  I think it would be improper; Maxine sees a difference between Constitution Day and a pledge requirement; Jim & Linda say in their post that a pledge requirement would be permissible.  I take the key to Jim & Linda’s answer to be that any individual student could opt-out. I understand Maxine to draw the distinction between ConstDay and a pledge requirement on the basis of the pledge’s substantive articulation of loyalty, as opposed to ConstDay’s putative agnosticism.

Two points.  1. I am surprised that Jim and Linda come down on the pledge requirement where they do.  I would have thought they, in Catherine’s words, would have seen it inconsistent with their “framework that incorporates critical thinking with mindful patriotism in which thinking students can challenge the ideas presented.” I would use as a reference here Justice Kennedy’s opinion in the school prayer case of Lee v Wiseman, where he discusses how peer pressure, especially in schools, can make dissent extraordinarily unlikely.  I am not a huge fan of Kennedy in general, but I think he got it mostly right when he said that “public pressure, as well as peer pressure…though subtle and indirect, can be as real as any overt compulsion.”  And even if individual students could opt-out, the institutions themselves could not without risking federal funds.

2. The civic republican project depends on a thick agreement on what the state should encourage.  My other hypothetical about teaching about Islam was meant to highlight this.  Some might be in favor of such a restriction for the reason that such restriction would engender civic virtue.  I think they’d be wrong, but I think a pledge requirement would be wrong as well.  So how much agreement about the substance of civic virtue should we expect or require before allowing it to be the basis of a requirement? Perhaps a better example to illustrate the question is a real one — the Rumsfeld v FAIR case, which upheld a statute requiring educational institutions to admit military recruiters onto campus as a condition of educational funding.  (Full disclosure: I was the founder and president of FAIR, so that’s why FAIR’s loss continues to chafe.)  That statute was based on a view of civic virtue that included a respect for military recruiters, even when those recruiters were refusing to interview or hire LGBT students.  Many law schools, and the AALS itself, believed that the requirement was a violation of the First Amendment rights of institutions, yet Congress thought it was important to support and protect the military in a time of war.  How should we mediate those disputes?

  February 28, 2013 at 3:24 pm  Tags: Constitution Day, patriotism, Unconstitutional Conditions  Posted in: Constitutional Law, Symposium (Ordered Liberty)   Print This Post   No Comments

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).

  February 28, 2013 at 1:07 pm   Posted in: Constitutional Law, Symposium (Ordered Liberty)   Print This Post   No Comments

Ordered LIberty Symposium- Catherine J. Ross

posted by Catherine Ross

Like others, I am delighted to participate in this discussion of Jim and Linda’s important new book, Ordered Liberty. Their work adds much-needed wisdom and common sense to a subject in which extremes of disagreement are too often exaggerated while commonalities are ignored or belittled—their express responses to critiques are liberalism are a significant contribution to the dialogue. I particularly appreciate their unabashed embrace of liberalism correctly – in my view – understood to embrace civic and personal responsibilities. Their thoughtful and accessible summaries of the theoretical literature provides an essential and useful grounding for the analysis that follows – one that I expect to draw on in my teaching.

Let me weigh in on the conversation between Kent Greenfield and the authors with respect to civic education and the balance between parental and state authority over children, which lies at the crux of my own research interests. Kent’s hands-off approach ignores both the extensive political science literature about how shared norms are achieved and the doctrinal recognition in leading opinions from Justice Jackson’s elegant statements in Barnette to Justice Brennan’s concurrence in Abington v. Schempp (and elsewhere) in which observed that Americans “regard the public schools as a most vital civic institution for the preservation of a democratic system of government.” Even with the recent growth in home schooling and the expansion of private schools (mostly sectarian) roughly 90% of American children still attend public schools – these schools provide a unique opportunity to created a shared civic culture and provide children with the tools they need to be engaged, active citizens, aware of both their rights and their responsibilities. Here, I think Kent too blithely assumes that all civic ceremonies are reduced to mindless patriotism (what Jim and Linda call “mandatory” patriotism), while Jim and Linda have in mind a framework that incorporates critical thinking with mindful patriotism in which thinking students can challenge the ideas presented and hold authority figures to the ideals they tout – even where the flag or constitution “is our own.”

Jim and Linda’s excellent discussion of the school’s role in teaching tolerance makes clear that norms of listening to and respecting each other can be taught without the state expressly “taking sides” on the substance of debates – granted that tolerance poses a challenge to parents who believe it threatens their absolutist beliefs, as the authors’ discussion of the classic Mozert case illustrates. Turning to home schooling, where the “shared sovereignty” and resulting tensions between the state’s interest in the next generation of citizens and the parental right to “care, custody and control” stand in stark relief, Jim and Linda grapple with a core problem: how to ensure that homeschooled children have exposure to ideas outside their parents’ belief systems and learn the tolerance required to preserve a pluralist democracy. (Full disclosure, Jim and Linda cite my work in their discussion of home schooling.) In one article, I suggested that homeschoolers be required to teach materials on tolerance provided by the schools, though I recognized that some homeschooling parents would undermine the lessons even as they taught the materials. Jim and Linda propose going further: requiring home-schooled students to come into the public schools to learn civics. I applaud this idea in principle, but I would argue that the real civics lessons in schools are not communicated through formal classes (though I think schools should offer them) but in the lessons learned by doing and acting – exercising speech rights, debating, and receiving adult guidance about resolving conflicts when schools make the best use of “teachable moments.”

On a more personal note, as a scholar of family life as well as constitutional law, and a participant in a long marriage, I am in awe of Jim and Linda for producing this book together while preserving what appears to be a happy and successful marriage. Kudos!

cjr

  February 28, 2013 at 12:03 pm   Posted in: Symposium (Ordered Liberty)   Print This Post   No Comments

The Substance of Constitutional Liberalism: Response to Robert Tsai

posted by James Fleming

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 the rest of this post »

  February 28, 2013 at 11:38 am   Posted in: Symposium (Ordered Liberty)   Print This Post   No Comments

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