Reviewed by Joseph R. Reisert, Department of Government, Colby College. Email: jrreiser [at] colby.edu.
In Ordered Liberty, Fleming and McClain defend "liberal theories of rights" against the general charge that such theories, and the practices they justify, fail to respect the importance of, and perhaps tend to undermine, "responsibilities, virtues, and the common good" (pp.1-2). Fleming and McClain identify four principal objections to legal liberalism, which they name the irresponsibility, neutrality, wrongness, and absoluteness critiques; the authors introduce and respond to each of these four critiques in turn.
First up is the "irresponsibility critique", which charges that "liberal theories of rights license irresponsible conduct instead of promoting ordered liberty" (p.4). Mary Ann Glendon's Rights Talk serves in Chapter 2 as the representative exemplar of this familiar objection. In brief, Rights Talk argues that America's public, civic and political discourse has become colonized by the individualistic language of rights, leaving us with a morally impoverished political culture, inattentive to the language and practices of civic responsibility. In defense of their constitutional liberalism, Fleming and McClain begin by challenging the plausibility of the causal connection Glendon's work posits: "it is unclear," they write, how a culture of personal irresponsibility "is due to the recognition and enforcement of legal rights" (p.29). Moreover, they contend that Glendon's critique is overdrawn; they argue that she has exaggerated the individualistic elements of legal liberalism and then objected to the caricature of liberalism that she herself has drawn. They invoke the work of Ronald Dworkin as representative of the legal liberalism they champion and point out several ways in which Dworkin is concerned with more than the bare protection of negative liberties. For example, when Dworkin defends his conception of rights grounded in respect for persons, he "envisions liberal citizens who care passionately about what they think is good and argue with and persuade each other concerning the good life" (p.42).
Chapter Three continues the debate about the relationship between legal liberalism and responsibility by focusing on the right to abortion, which, Fleming and McClain claim, is the right that most frequently "draws the irresponsibility critique" (p.50). In replying to the charge that the abortion right encourages irresponsibility, the authors distinguish two senses of responsibility: responsibility as autonomy and responsibility as accountability (p.51). Opponents of abortion, they argue, endorse the latter sense of responsibility; Fleming and McClain endorse the former. In their view, to protect a woman's right to abortion is to guarantee that she will be responsible to her own conscientious best judgments about the [*317] nature and value of human life (p.68). Fleming and McClain offer qualified praise for the joint opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey, which, they note, "arguably moved the law in [Glendon's] communitarian direction" (p.56). Like Dworkin, and like the plurality in Casey, Fleming and McClain ground "the right to decide whether to terminate a pregnancy in women's capacity to decide responsibly" (p.80). To the extent that Casey may be read as permitting governmental action to facilitate responsible and informed decision-making, they agree with it, though they express concern that the governmental moralizing it endorses does not offer the sort of "balanced presentation of the parameters of responsible reproductive choice" they advocate (p.67).
Next is the "neutrality critique," which the authors take up in Chapters 4 through 6. This is the objection that liberal theories of rights "require neutrality among competing conceptions of the good life" and thus preclude government "from promoting good lives and inculcating civic virtues and public values" (p.8). In Chapter 4, Fleming and McClain respond to the worries of critics to whom they refer collectively as "civil society revivalists," who hold that though a liberal society depends on the widespread diffusion of civic virtues, political liberalism tends to undermine such virtues. Their responses to these worries parallel their replies to the irresponsibility critique in Chapter 2. First, they question the causal relationship the critics posit; next, they argue that the constitutional liberalism they advocate is less individualistic than the critics suppose and, in fact, also recognizes the role civil society plays in the formation of citizens.
In Chapter 5, the authors contend that "the gap between political liberalism and its critics as to government's authority to foster citizens' capacities for self-government is not as great as is commonly assumed" (p.116). Indeed, they endorse a role for the liberal state in promoting critical thinking and such civic virtues as "tolerance, civility, reciprocity, and cooperation" (p.116). Fleming and McCain prove to be more insistent than William Galston on the authority of the state to teach curricula designed to impart these virtues, even over parents' objections. Not only would they deny parents' the liberty to prevent their children from being exposed to specific curricular messages they happened to oppose, Fleming and McClain hold that parents cannot hinder the state from teaching civic virtues by opting for homeschooling either: "there is," they write, "sufficient justification to require that homeschooled children above a certain age participate, with other children, in a civics curriculum" (p.141). In Chapter 6, the authors ask, "what limits must government respect ... when it regulates or encourages behavior to advance political virtues or values?" (p.147). It emerges that there are few such limits, at least in the cases explored in that chapter, when the state aims to vindicate the value of equal citizenship through the enforcement of antidiscrimination law. There may be some room, according to the authors, for the prudential recognition of religious exemptions from laws recognizing same-sex marriage, but they also express the hope that the need for such accommodations will prove fleeting.
Chapters 7 and 8 outline and answer the [*318] "wrongness critique", which alleges that "liberal theories ground rights of autonomy in empty toleration of wrong conduct instead of the substantive moral goods or virtues promoted by protecting such rights" (12). Chapter 7 engages Michael Sandel's critique of arguments for gay rights that sound in the minimalistic, liberal values of choice and autonomy rather than resting upon a substantive account of the human goods advanced by same-sex relationships. McClain and Fleming respond that their constitutional liberalism sees no conflict between autonomy based arguments and at least some forms of mild perfectionism. Indeed, they argue that the majority opinion in Lawrence v. Texas represents a step towards the mild perfectionism Sandel advocates, at least when juxtaposed against Justice Blackmun's dissent in Bowers v. Hardwick. And, they note approvingly, "Goodridge v. Department of Public Health ... may be the fullest realization in a judicial opinion to date of Sandel's call for substantive moral arguments in justifying civil rights" (p.181). Even so, they insist, nothing in Goodridge is inconsistent with the political liberalism they advocate; Chief Justice Margaret Marshall's opinion is, in their view, "an exemplar of public reason" (p.190). In Chapter 8, Fleming and McClain respond to Cass Sunstein's minimalism, which charges their constitutional liberalism with being excessively perfectionistic and thus insufficiently respectful of the citizenry's capacity for deliberation about constitutional values. They argue that, at the level of constitutional theory, Sunstein is no less a perfectionist than they; his minimalism turns out to be only a judicial strategy for dealing with controversial, constitutional issues. And Fleming and McClain see no particular reason why minimalist decisions will prove any less controversial in practice than the more robustly perfectionistic liberal approach they favor. Thus, they present their constitutional liberalism as a sort of middle ground between what they suggest is the excessive perfectionism of Sandel and the minimalism of Sunstein.
Finally, chapter 9 describes and seeks to refute the "absoluteness critique", which complains that liberal theories of rights "treat fundamental rights as 'trumps' or absolute exemptions from governmental pursuit of goods" (p.15). Their response to this charge was intimated in Chapter 2, when they suggested that Glendon's image of liberalism was not a portrait but a caricature. Here, they argue that the seeming absolutism of the Supreme Court's jurisprudence under the Due Process Clause exists only in the opinions of the justices who oppose the protection of new fundamental rights. Thus one finds the clearest articulation of the dichotomy between fundamental rights that trigger strict scrutiny and non-fundamental liberties that merit only a very deferential rational basis review in Justice White's majority opinion in Bowers, in Chief Justice Rehnquist's opinion for the Court in Washington v. Glucksberg, and in Justice Scalia's Lawrence dissent. After a tour of due process cases from Meyer v. Nebraska to the present, Fleming and McClain conclude that these cases are best understood as embodying the "reasoned judgment" Justice Harlan called for in Poe v. Ullman; such judgment protects liberty while preserving a role for government in "encouraging responsibility [and] inculcating civic virtues in the ways prescribed by [their] constitutional liberalism" (p.241). [*319]
Ordered Liberty manifestly covers a broad swath of intellectual terrain, and no brief summary can do justice to the full range of cases and theorists Fleming and McClain engage. The work is at its best when the authors are advancing their own interpretations of case law; they argue persuasively that their mildly perfectionistic liberalism is already well represented in our constitutional jurisprudence and that those who would criticize legal liberalism need to start from a more accurate and more nuanced understanding of the contemporary legal landscape, before launching their critiques.
In two other respects, however, the book disappoints. First, to the extent that Glendon and the various "civil society revivalists" are advancing empirical arguments about the bad effects of our legal and political culture on civic virtue, personal responsibility, and the institutions of civil society, the replies of Fleming and McClain are insufficient and unpersuasive. They are right to question whether the critics have produced an adequate account of the causal relationships they are implicitly positing, and they are right also to doubt whether any of the works with which they engage provide anything like sufficient evidence for concluding that liberalism erodes personal or civic virtue, or undermines civil society. But neither is it evidence for the proposition that liberalism does not undermine responsibility to point out that liberals assume that individuals will responsibly exercise their freedom to choose and that they also assume that the institutions of civil society will operate, to some extent, in harmony with the demands of the state. At least since the time of Mill, liberal theorists have insisted that there is no conflict in principle between freedom and virtue; Mill famously insisted that "human beings ... should be forever stimulating each other to increased exercise of their higher faculties," evidently hoping that a society that embraced the value of individuality would also see an elevation in the minds of its people (Mill 1975, p.71). However, the empirical hypothesis at the core of the irresponsibility critique is that, whatever anyone's liberalism may permit or even presuppose, Americans in fact are becoming more selfish and irresponsible, and something in our political thought and practice is the cause. Whether it is true or not that we are becoming more selfish, and, if so, whether something in our politics is the cause, are overwhelmingly important questions, but they cannot be settled by any amount of textual analysis: that is a task for our colleagues in the empirical social sciences.
Second, unlike William Galston's Liberal Purposes and Stephen Macedo's Liberal Virtues, which also sought to defend liberalism against its critics, Fleming and McClain's Ordered Liberty never develops an affirmative account of the conception of liberalism its authors advocate. That is disappointing, for two reasons. First, because the several allusions to their conception of the Constitution as a "charter of positive benefits" suggest that they have indeed developed a distinctive, liberal theory of constitutional rights, which readers might find illuminating and instructive. Second, by withholding that account, the authors' engagement with their several interlocutors amounts to mere eristic, not dialectic. When it comes time to engage each critic, the authors draw upon one [*320] strand or other within the broad family of liberal theories to ground their reply. In one place, Dworkin's liberalism is representative of the view they defend; in another, it is Rawls's; at some points, the authors agree with Justice Kennedy; elsewhere (and surprisingly), they cite Justice Alito. As a result, though one can say that some liberal reply can be made to each of the (non-empirical) objections made against the broad family of legal liberalisms the authors defend, Ordered Liberty does not establish that there is any particular conception of liberalism that can meet all of them.
Galston, William A. 1991. Liberal Purposes: Goods, Virtues, and Diversity in the Liberal State. Cambridge, UK: Cambridge University Press.
Macedo, Stephen. 1990. Liberal Virtues: Citizenship, Virtue, and Community in Liberal Constitutionalism. Oxford: Clarendon Press.
Mill, John Stuart. 1975. On Liberty: Annotated Text, Sources, and Background Criticism. New York: W.W. Norton & Company.
Bowers v. Hardwick 478 U.S. 186 (1986).
Goodridge v. Department Of Public Health 798 N.E.2d 941 (Mass. 2003)
Lawrence v. Texas 539 U.S. 558 (2003).
Meyer v. Nebraska 262 U.S. 390 (1923).
Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992).
Poe v. Ullman 367 U.S. 497 (1961).
Washington v. Glucksberg 521 U.S. 702 (1997).
Copyright by the author, Joseph R. Reisert.