By Mike Dorf
In yesterday's post I summarized my remarks on the panel at Boston University Law School discussing the new book by Jim Fleming and Linda McClain, Ordered Liberty. Those remarks focused on a point they develop in the first three chapters. Here I'll provide a brief summary of the proceedings and then turn to a different point about the book.
The panel featured comments by me, by Harvard Law Professor Dick Fallon and by Brandeis Philosophy Professor Marion Smiley--followed by a response from the authors and then Q&A with the audience. All three of us praised the book and noted that we agreed with nearly all of it but that it is the nature of these events to focus on disagreements. Each of the others made a number of points, but I'll simply highlight what I thought was the most pointed challenge each posed.
Noting the tendency of Fleming and McClain to explain in many instances how liberalism is capacious enough to accommodate the value that communitarians invoke to criticise liberalism, Fallon asked what was it about the Fleming/McClain book that made their position "liberal" as such. Their answer, when it came time, was more or less that they don't have an account in which liberalism is about working out the implications of some central value (like liberty or equal respect) but a constructivist view in the way that Rawls built his liberalism.
Smiley asked what I would call a "distributional" question. Fleming and McClain argue that contrary to communitarians' criticisms, liberals need not reject any role for a "formative project" by which the state encourages citizens to act responsibly--so long as it generally eschews coercive means. Smiley worried that such a project will likely target minorities, women and other subordinated groups for "formation." She gave the following example: The state will tell women how to exercise their right to bodily autonomy responsibly but not tell property owners how to exercise their property rights responsibly. In response, McClain acknowledged the risk and noted that the examples in the book are drawn from case law with which she and Fleming do not necessarily agree. (To my mind, that concedes a lot: It shows that Smiley's fear may have been realized.)
During the Q&A session, BU Law Professor Wendy Gordon suggested that my criticism of the book was too gentle. Even if the law forbids some conduct, people will still have the opportunity to practice acting responsibly by deciding whether to comply with the law or to violate it (and try to get away with violating it). Thus, I can concede that there is some interest in freedom to act irresponsibly but also say that this freedom doesn't properly enter into the question of whether there should be any particular rights. I agreed but clarified that in my view freedom could count as valuable in itself, just not (or not much) in virtue of the fact that it facilitates the choice of acting responsibly rather than irresponsibly.
Commenting on this exchange, Harvard Law Professor Frank Michelman observed that liberals have a hard time affirming that they/we think that freedom (in the sense of freedom from interference) is a good in itself, for fear of being mistaken for libertarians. This comment garnered assent from all assembled, leading to the speculation that Ronald Dworkin's way of talking about responsibility played a major role in fostering this attitude. Interestingly, that's also what Fleming said in response to my affirmative presentation: He acknowledged that the book does use the "theodicean" formulation and noted how Dworkin's writing is even more clearly in this vein.
So there you have it: An interesting hour and a half on an insightful book. Now, briefly, I'll follow up with the observation I promised yesterday, concerning a point that Fleming and McClain make expressly in Chapter Six ("Conflicts Between Liberty and Equality") and to some extent in Chapter Five ("Government's Role in Promoting Civic Virtues"). Fleming and McClain frame much of their discussion around the following question: To what extent should the polity insist that the values of sub-groups (such as civic associations) exhibit what they call "congruence" with the values that the broader polity affirms? (They borrow the idea of congruence from the work of political theorist Nancy Rosenblum.)
In Chapter Six, Fleming and McClain focus on conflicts between liberty and equality in which some sub-group wants the liberty to reject equal treatment on some basis that the law generally affirms. They consider cases in which: the Jaycees object to admitting women; Bob Jones University wants to retain favorable tax treatment notwithstanding its policy forbidding interracial dating; the Boy Scouts of America want to exclude gay scouts and troop leaders; and the Hastings Law School chapter of the Christian Legal Society wants to be treated as an official law school club notwithstanding its exclusion of "unrepentant" homosexuals (and, ostensibly, other sinners).
Fleming and McClain's analysis of the four Supreme Court cases to which I just alluded strikes me as quite sensible, but it raises couple of questions. First, (to echo the point Fallon made and I noted above), it's not clear to me that the Rawlsian apparatus they invoke--which gives priority to the "basic liberties"--is really doing much work. Rather, it looks like Fleming and McClain are simply more egalitarian than libertarian, when push comes to shove, and at least when the grounds for equality are ones they support (such as sex, race and sexual orientation). To be sure, in their Chapter 5 they do point to one case in which they side with the liberty claim as against the equality claim, but the example involves a clearly overzealous public school engaging in censorship of religious anti-gay speech without any clear payoff. To say that liberty prevails over equality when the means chosen to pursue equality do not actually achieve much equality is not to prefer liberty to equality. In the cases of genuine conflict, Fleming and McClain clearly side with equality. And that's fine. I think I do too. But that's not so much an "approach" or a "principle" as it is a value judgment.
Second, I have the uneasy feeling that when Fleming and McClain think about the question of how much congruence there should be, they are typically asking to what extent "we" should excuse or tolerate "them" in espousing norms that "we" don't share. They generally imagine that the conflict will involve a public norm they support and a dissident group that wants to be excused from it.
To be sure, I found one example in the book in which Fleming and McClain see the possibility that an anti-egalitarian group may seek to appropriate the apparatus of the state to make its values congruent with their own. The example is the Manhattan Declaration's rejection of same-sex marriage. Fleming and McClain write that it "insinuates congruence when it articulates the religious roots of the correct 'objective' understanding of marriage."
The main concern of Fleming and McClain have with the Manhattan Declaration, however, is simply its inegalitarianism. They do not appear to draw the lesson that I would draw here: In thinking about congruence, one must keep in mind that sometimes one will share the values the state promotes, and so departures from congruence will enable those values to be thwarted somewhat, but at other times, one will disagree with the values the state promotes--perhaps sharply--and in these circumstances departures from congruence will be very welcome.
Let me make that less abstract. Ten years ago, I would likely have approached these issues in much the same way that Fleming and McClain approach them. But since then I have had a set of experiences that I suspect are broadly similar to the way in which religious conservatives experience the secularism of the public schools and government more broadly. As a vegan and a parent of vegan children in an overwhelmingly non-vegan world, I often find myself grateful simply for the opportunity for me and my children to opt out of the pervasive and often unconscious glorification of the animal-exploitation industries. Although I am not religious or conservative, I have a much easier time now than in the past imagining what it must be like to be the sort of religious conservative for whom secularism is a pervasive affront.
If one can imagine being in the position of an impassioned dissenter from some public norm, then the case against congruence becomes substantially stronger--not just because one thinks that the autonomy of the somewhat repugnant dissenters ought to be respected. Rather, one may value departures from congruence on the ground that one may end up as the dissenter. We might even think of this as a Rawlsian mechanism: Behind the veil of ignorance, one has reason to worry that one may strongly dissent from the values the state espouses, and so one should try to ensure that there is room for acting on those dissenting values. This seems to me a principle that Fleming and McClain--who are strongly Rawlsian--ought to champion. More importantly, it strikes me as correct.
Postscript: When I told McClain about my experience after the session, she found it helpful because, among other things, it gives her an example that does not involve religion as the basis for dissent.