Category: Symposium (Ordered Liberty)

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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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“Mutual Adjustment” as (merely) congruence delayed

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.

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Democratic Values v. Virtues: Brettschneider on Ordered Liberty

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 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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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. Read More

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More on Mandatory Patriotism

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?

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Theory as Recipe

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).

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Ordered LIberty Symposium- Catherine J. 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

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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