Category: Symposium (Ordered Liberty)

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Solid Liberalism

The most recent Pew surveys suggest that most educated elites are either Solid Liberals, who take the liberal position on almost all constitutional issues of the day, or Staunch Conservatives, who take the conservative position on almost all constitutional issues of the day. The Pew surveys and thers find that conservative elites are more conservative than the average Republican and, unlike most less educated, less affluent and less politically involved Republicans, take the most conservative position on virtually all constitutional issues of the day. Liberal elites are similarly more liberal than the average Democrat, and, unlike most less educated, less affluent and less politically involved Democrats, take the most liberal position on virtually all constitutional issues of the day. These findings differ considerably from similar, but not identical, surveys taken during the heyday of the Warren Court. Those surveys found that elite Republican and Democratic often had more in common with each other than with the average member of their partisan coalition, that elites tended on most issues to be more liberal than other citizens, but that liberalism in one issue (i.e., race) did not necessarily predict liberalism on other issues (i.e., free speech). In short, Americans have moved from a society structured by elite consensus and conflict diffusion to one structured by elite polarization and conflict.

Ordered Liberty is one of many exceptional works trying to work out the precise constitutional vision of Solid Liberals. As is true of most Solid Liberals, Fleming and McClain support the Obama health care program (or think the program should be expanded), same-sex marriage, affirmative action, legal abortion, a sharp separation of church and state, and related policies. Unlike many contemporary liberals, Fleming and McClain maintain that liberalism has a robust theory of the good life and a strong theory of liberal rights can be yoked with a strong theory of liberal responsibilities. While much late twentieth century liberalism insisted on government neutrality on the good life and regarded rights as licenses to harm, Ordered Liberty is more consistent with an older liberalism, exemplified by such thinkers as John Dewey, Jane Addams, and Louis Brandeis, which justified liberal policies as the best means for fashioning good democratic citizens. Fleming and McClain also break from many contemporary liberals by insisting that constitutional interpretation and adjudication ought to be considered important means for realizing liberal constitutional aspirations. In sharp contrast to many twentieth century liberal thinkers, who (to paraphrase Martin Shapiro) loved what the Warren Court was doing but hated the court for doing it, Fleming and McClain enthusiastically champion a federal judiciary committed to their particular version of Solid Liberalism. While I would quibble with some details, I am inclined to take the somewhat stronger position that government can never be neutral on the good life (so all we can do is choose between different liberal or conservative conceptions of the good), and I think that a liberal court appointed by liberal political officials is empowered to impose liberal policies in outlier jurisdictions. In short, as a good Solid Liberal, I find very little of importance to object to in Ordered Liberty or, for that matter, in much recent liberal constitutional thought. As I have previously stated, a polity that took Ordered Liberty or similar works as a constitutional guide, would be a good policy.

At several points in the book, Fleming and McClain threaten to break out of the Solid Liberal mold, but pull back. One point occurs in the discussion on abortion. Ordered Liberty suggests that a state, consistent with constitutional liberty, might persuade women not to have abortions. Fleming and McClain then immediately and correctly note that most legislation aimed at “persuasion” does so largely by presenting false/misleading information or by burdening the choice, rather than trying to convince women through reasonable normative arguments that giving birth is the better choice. They then suggest that a balanced presentation of the merits of abortion is best. Another point where Ordered Liberty threatens but pulls back from challenging ore Solid Liberal beliefs occurs during the discussion of Bob Jones v. United States. Ordered Liberty suggests that the Supreme Court in that case correctly ruled that religious organizations can be denied tax exemptions if they teach racism and other abhorrent doctrines. I confess to be troubled by the analysis. I suspect that most Jewish schools at the very least encourage students to date and marry other Jews, that these schools teach the doctrine that Jews are a chosen people, and that a great many other religions engage in similarly illiberal teaching. Given the importance of the welfare state in the lives of most citizens, a point Fleming and McClain make elsewhere in the book, I confess to some discomfort with the constitutional rule they eventually endorse that forbids religious coercion but permits religious groups to be denied state benefits that go to other religious groups with more liberally accepted beliefs. I think based on what the authors suggest elsewhere in the book, a case can be made that Bob Jones ought to be rethought. Having said this, however, I should cheerfully acknowledge that Fleming and McClain have thought far more seriously about these matters than I have and I am sure that should they care to response to this point, they will have a strong explanation as to why they did not cross liberal boundaries on both abortion and Bob Jones. The best I can say is that Ordered Liberty would have been more interesting to me (and maybe to no one else) if the authors had more aggressively spelled out how pro-life an American constitutional regime could be and suggested that Bob Jones be rethought (my opinion, by the way, is that the decision was correct when decided primarily because of Reagan Administration shenanigans which created the real possibility that a decision for Bob Jones could be plausibly interpreted as placing the racist policies of that institution within the parameters of legitimate public discourse. The decision comes out differently if a liberal president urges maintaining the tax exception on the principle of freedom of religion for hateful religions). I like surprises in my movies and academic reading, but the true may simply be that the reason why so many educated Americans are either Solid Liberals or Staunch Conservatives (with a libertarian bent) is that those are the most coherent constitutional positions at this time.

My more serious concern with Orderly Liberty concerns that state of a constitutionalism or the liberal constitutional genre. A great deal of ink has been split over the problems of polarization in American public life. Certainly no reader of Concurring Opinions needs to be informed that the only issue with respect to the upcoming sequester is how bad those harms are likely to be. To get out of our present situation, one of two alternatives must happen. Abraham Lincoln, the patron saint of contemporary American constitutionalism, expressed the first alternative when he asserted, “I believe this government cannot endure permanently, half slave and half free,” but “will become all one thing or all the other.” So, on this vision, our polarization will end when either the United States becomes committed to a liberal regime or Americans become committed to a conservative polity. Fleming and McClain have tirelessly labored to convince their fellow citizens that the best interpretation of American constitutional commitments requires us to become the state envisioned by Solid Liberals. To the extent I find that project tiresome, the only reason is that I was fully convinced long ago that a country of Solid Liberals is a far more constitutionally attractive regime than a country of Staunch Conservatives. My more serious problem is that I suspect the project of persuading Americans to become a predominantly liberal or a predominantly conservative regime is likely to be no more successful than the 1850s project of persuading Americans to become either a predominantly slave regime or a predominantly free regime. If this hunch is correct, and we are not prepared to bring the fully free (or Solid Liberal) regime by using the Union Army, Americans will need a constitutional theory of the center that is more than a simple commitment to judicial minimalism (which in Sunsteinian form is another version of the constitutional theory of the left). Given that the vast majority of constitutional theorists are Solid Liberals or Staunch Conservatives, that constitutional theory will have to be developed by intellectuals whose beliefs are decided not centrist. The good news is that there are more than enough law professors tilling in the constitutional theory fields, so that the mere fact that the fields of liberal constitutional theory strike me as overpopulated is hardly a problem. Still, I do hope we see more constitutional theory in the near future that attempts to figure out how we can better live with the citizens we have than more constitutional theory that tries to persuade the citizens we have to be something else (or claims that, deep down, we all really agree).

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More on Ordered Liberty, Civic Virtue, and Mandatory Patriotism

I, too, am delighted to be participating in the discussion of Jim and Linda’s book, Ordered Liberty. And I’ll bite with respect to Kent Greenfield’s post on their chapter on civic education, a chapter that I thought was particularly thoughtful. Kent was troubled by Jim and Linda’s support for the federal mandate that all schools receiving federal funds discuss the constitution on Constitution Day. Kent is certainly right that the Constitution Day discussion requirement was intended by its sponsors to promote patriotism in young citizens. As someone who feels mildly nauseated whenever people are prompted to recite the loyalty oath of the pledge, I heartily agree with Kent’s view that coerced patriotism is, in his words, “a Bad Thing.” It seems to me, though, that the pledge example is actually pretty different from the Constitution Day example, and the difference between them is significant for the nuanced place in which I think Jim and Linda are seeking to situate their version of civic liberalism. I don’t see their version of preferred government as being particularly favorable to encouraging blind loyalty in the country, as would a pledge requirement (I say this despite Jim saying in his responding post that he thinks a pledge requirement would at least be permissible).  And I would argue that civic liberalism shouldn’t even be favorable to inducing non-blind loyalty to the country with recognition of its warts.  What it should instead seek to foster in its young citizens, as Jim and Linda argue, are the political virtues necessary for collective self-government of a liberal character, premised on respect for the political liberty and equality of others. Engendering these virtues requires discussion about liberty and equality, and — to return to the Constitution-Day example — discussing the constitution doesn’t seem like a bad way to go about that. That also makes the Constitution-day requirement very different from the hypothetical that Kent raises at the end of his post regarding the government’s refusing to fund schools that taught courses on Islam; this requirement would foster non-liberal values in students—exactly the opposite of the values that Jim and Linda’s version of civic liberalism calls for encouraging.

Not to appoint myself defender of Jim and Linda’s book here, but I think their positioning on these issues – favoring inculcation of a thicker range of liberal virtues than would, for example, the early Rawls, but not nearly approaching perfectionist liberalism – answers some of the questions posed by Robert Tsai in his post in this symposium. Indeed, their version of civic liberalism doesn’t just organize the conversation, it aims for a nuanced balancing point between these ends. I think Robert is right that Jim and Linda could have fleshed out somewhat more the content of their liberal virtues, and how they would work out conflicts between liberty and civic virtues as applied to a broader realm of policy issues. On the other hand, they needed to leave themselves something to do in their next book . . .

 

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The Language of Civic Republicanism

It’s an honor to participate in this online discussion of Jim’s and Linda’s book, Ordered Liberty, which offers a theory of liberal constitutionalism that seeks to mediate tensions between rights, responsibilities, and virtue.  Their work is always engaging, learned, and timely.  I’m pleased to have the opportunity to share some thoughts about it.

There are many provocative concepts worth pushing on, but I thought I might begin by observing that it is possible to read their thoughtful book as requiring the use of civic republicanism as the primary language through which to fight over constitutional rights.  If this is correct, I would begin by asking the question: what work does the language of civic republicanism do in their theory?

Jim and Linda posit that fostering responsibility for oneself and responsibility to others (family and community) characterizes the general project that may be undertaken by the state.  At times, this “formative project” is called “securing the capacities for democratic and personal self-governance.”  So, again, how much lifting does the ideology and rhetoric of republicanism accomplish?

One possibility is that civic republicanism organizes constitutional debate.  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.  Departing from communitarians and natural law theorists, Jim and Linda believe that moral arguments are permissible in constitutional debate so long as they have been translated into the language of civic republicanism: a speaker doesn’t refer to comprehensive moral doctrines, but instead resorts to some set of liberal values, or virtues.

If civic republicanism merely organizes a conversation, then it may be doing little more than establishing a range of possible outcomes, all of which might be compatible with the goal of inculcating some agreed-upon set of virtues and responsibilities.  The authors’ discussion of home schooling suggests that, after taking the extremes off the table (a right to home school without qualification/ no right to home school), there are any number of possible policy arrangements that might inculcate responsibility and virtue.  Similarly, in discussing BSA v. Dale, Jim and Linda don’t quite come out and say the case was wrongly decided or rightly decided, but are content to suggest ways in which the opinion might have taken autonomy and responsibility better into account.  This hesitation could be treated as evidence that, once extreme solutions are taken off the table and the language of virtue and responsibility is used in some minimally proficient way, their theory is indifferent to which outcome is selected so long as the choice is defended in the right vocabulary.  This vision can, in a slightly different light, resemble a procedural approach to constitutional law.

But it may seem unsatisfying for a constitutional theory not to help us choose among attractive possibilities.  Can we imagine a civic republicanism that does more work, one that more strongly shapes particular outcomes?  In other words, can the framework of virtues and responsibilities aid us in sifting through possibilities and identifying better solutions from among plausible ones?  Perhaps, but in a pluralistic community we would need to know something more about particular responsibilities (to whom), which virtues should be maximized (since in reality many different virtues may be at stake and in tension), and whose virtues should be prioritized (more on this later) before we could assess which outcome would best facilitate a virtue-based agenda.

Perhaps what Jim and Linda offer is something short of a comprehensive theory (the authors seem skeptical of grand theories and perfectionist approaches) but more than a rule-bound approach.  It is a demand that constitutional discourse occur under certain grammar rules, coupled with a handful of meta-principles.  At times, Jim and Linda seem to be arguing that civic republicanism (at least the version favored by the authors that takes both rights and responsibilities seriously) yields substantive meta-norms.  For instance, their critique of Sunstein’s theory of minimalism suggests they favor a strong adjudicative norm of judicial engagement.  They don’t seem to think that judges should avoid controversial cases simply out of a fear of backlash; to the contrary, they believe (as I do) that judges must undertake to articulate rights as part of a duty to ensuring deliberative politics.

The authors praise solutions that neither spell out absolute rights nor deny individual autonomy.  They especially like solutions of “shared sovereignty” grounded in the idea that multiple communities have a claim on individuals (see, for example, their discussion of cases involving the rights of schoolchildren or abortion), and solutions that foster dialogue among different branches of government (see their analysis of the gay marriage rulings).  All of these strategies of decisionmaking may encourage deliberation, though in ways that individuals might occasionally fear, precisely because they challenge one’s worldview.  What I am less certain of is what civic virtues are being maximized through shared sovereignty solutions.  Is it an ideal mindset associated with citizenship?—for instance, Jim and Linda sometimes speak of “reflective” judgment.  Perhaps the best legal decisions foster certain habits of citizenship, e.g., considering a viewpoint different from one’s own, consulting all communities with a stake in the outcome?  Or are shared sovereignty solutions preferred on the view that multiple decisionmakers might increase the chances of better, more informed decisions, or at least culturally supported ones?

So, the upshot is this: how thick or thin, and how substantive or procedural in nature is the language of rights, virtues, and responsibility?

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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.

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On Civic Virtue and Mandatory Patriotism

It is an honor for me to be invited to comment on James’s and Linda’s excellent and thoughtful new book Ordered Liberty: Rights, Responsibilities, and Virtues, especially as I look at the other invited commentators.  The book is certainly worth the sustained effort and attention that Concurring Opinions will facilitate this week with our various posts and comments.  I look forward to participating.

(This may be the first post out of the gate, but no one should read anything into the temporal ordering other than that I am jet lagged, awake at London time rather than Boston time.)

I want to prompt a conversation about Chapter 5, “Government’s Role in Promoting Civic Virtues,” in which James and Linda examine the “formulative project” of fostering “capacities for democratic and personal self-government.” They use  as an opening foil an op-ed I wrote in the New York Times in 2011 arguing that Constitution Day is a bad idea and “probably” unconstitutional. In that essay and in a couple of others, I have revealed Constitution Day to be a bete noire of mine. Constitution Day, as you probably know if you’re an academic, is a federal mandate dating from 2005 that any school receiving federal funds — public or private, kindergarten or law school — conduct some kind of educational program on the constitution on or about September 17 of each year. My basic argument is that it operates as a federal content-based mandate on those schools and thus amounts to coerced speech under the First Amendment. More broadly, I argue that coerced patriotism is a Bad Thing, using as my text Justice Jackson’s admonition in West Virginia v Barnette: “To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a compulsory routine, is to make an unflattering estimate of the appeal of our institutions to free minds.”

James and Linda think I am mistaken, saying that there is little chance the Court would strike down Constitution Day as an unconstitutional condition, and that it does not amount to mandatory patriotism because schools can meet their obligations by hosting educational programs that are critical of the document and its heritage.  And I also take them to say that gentle prodding in favor of civic education, especially about a topic as central to democratic life as the Constitution, is not a Bad Thing but could be a Good Thing.

So here are a couple of points and questions about this disagreement, with the hope of prompting some of the other commentators to weigh in.

I certainly agree with the descriptive point about the Court not likely striking down Constitution Day as an unconstitutional condition.  The “doctrine” of unconstitutional conditions is a hash — compare Rumsfeld v FAIR or Rust v Sullivan (allowing conditions) with Speiser v Randall or Legal Services Corp. v Velazquez (disallowing them).  And Chief Justice Roberts’s bizarre opinion on the Medicaid expansion in Sebelius last year makes it worse, though it actually strengthens my argument about Constitution Day.   (If the threat of the loss of Medicaid funding is coercive because it is “economic dragooning that leaves the States with no real option,” then so is the loss of education funding.)  In any event, the Court is unlikely to feel so constrained by the “doctrine” of unconstitutional conditions to strike down a law that most feel imposes trivial obligations in exchange for significant funds.  (Though — just to allow me to vent for a moment — that characterization makes the fact that the condition acts as coercion fairly clear.)

So I will assume for the sake of conversation that the question of governmental authority is settled.  So that leaves the question of rights.  And Ordered Liberty helps us get a handle on that question, not only with regard to Constitution Day but with broader questions of the state’s role in fostering “civil tolerance.”

But my 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?  And how does that play into the rights dialogue?  Here’s a law professor’s hypothetical.  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?  Or, “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”?  Are these worse because there is a greater viewpoint bias imbedded in them?  Does it matter that, in operation, the vast majority of institutions that mark Constitution Day in fact do so with celebratory rather than critical curricula?

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Fleming on the Life and Work of Ronald Dworkin

Over at Balkanization, Professor James Fleming has a touching eulogy honoring Ronald Dworkin, see here.  Professor Fleming is The Honorable Frank R. Kenison Distinguished Scholar in Law, Associate Dean for Intellectual Life, and Professor of Law at Boston University School of Law.  It’s a fitting tribute, all the more so given that Fleming has enriched Dworkin’s life-long project of taking rights seriously and, like Dworkin, has been a extraordinary guide in helping us understand the moral complexities of pressing constitutional issues.  New week, we shall be talking about Fleming and Linda McClain’s new book, Ordered Liberty: Rights, Responsibilities, and Virtues, which develops a civic liberalism that takes responsibilities and civic virtues – as well as rights – seriously.

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Upcoming Online Symposium on James Fleming & Linda McClain’s Ordered Liberty: Rights, Responsibilities, and Virtues

During the week of February 25, we will be hosting an online symposium on James Fleming & Linda McClain’s new masterpiece Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press 2013).  As HUP notes on its site:

Many have argued in recent years that the U.S. constitutional system exalts individual rights over responsibilities, virtues, and the common good. Answering the charges against liberal theories of rights, James Fleming and Linda McClain develop and defend a civic liberalism that takes responsibilities and virtues—as well as rights—seriously. They provide an account of ordered liberty that protects basic liberties stringently, but not absolutely, and permits government to encourage responsibility and inculcate civic virtues without sacrificing personal autonomy to collective determinations.  The battle over same-sex marriage is one of many current controversies the authors use to defend their understanding of the relationship among rights, responsibilities, and virtues. Against accusations that same-sex marriage severs the rights of marriage from responsible sexuality, procreation, and parenthood, they argue that same-sex couples seek the same rights, responsibilities, and goods of civil marriage that opposite-sex couples pursue. Securing their right to marry respects individual autonomy while also promoting moral goods and virtues. Other issues to which they apply their idea of civic liberalism include reproductive freedom, the proper roles and regulation of civil society and the family, the education of children, and clashes between First Amendment freedoms (of association and religion) and antidiscrimination law. Articulating common ground between liberalism and its critics, Fleming and McClain develop an account of responsibilities and virtues that appreciates the value of diversity in our morally pluralistic constitutional democracy.

Our participants include:

Catherine Ross

Chai Feldblum

Corey Brettschneider

James Fleming

Kent Greenfield

Linda McClain

Maxine Eichner

Michael Dorf

Rick Garnett

Robert Tsai

Robin West

Tamara Metz

Vivian Hamilton