Abstract
Authors understandably take umbrage when they are criticized by reviewers for not having written on topics that differ considerably from those on which they have actually written. Still, I should report—as an observation rather than as a criticism—that the volume under assessment here differs significantly from what I expected when I agreed to review it. I thought that a book entitled Ordered Liberty: Rights, Responsibilities, and Virtues would be a work of political philosophy exploring the fundamental nature of liberty and rights and duties and authority and virtues. I was therefore surprised to discover that it is instead unremittingly a work of American constitutional theory. Rather than conducting philosophical investigations of any of the phenomena just listed, the book considers those phenomena solely as they bear upon some major controversies within American constitutional law.
To be sure, Ordered Liberty engages with writings by a number of political philosophers such as John Rawls and Michael Sandel and Ronald Dworkin. However, it draws upon their ideas only insofar as they help to illuminate some cruxes with which American judges and legislators have grappled in seeking to resolve disputes among various citizens of the United States. The book does not address the vast philosophical literature on the nature of freedom—Isaiah Berlin, for example, is mentioned only fleetingly and in connection with his value-pluralism rather than in connection with his discussions of negative liberty versus positive liberty—and it almost entirely ignores the vast philosophical literature on the nature of rights. (The only dip into the latter literature is an extremely brief and quite misleading summary of some of the ideas of Wesley Hohfeld. That rather distortive glance at Hohfeld’s work suffers from being based largely on a couple of dubious law-journal articles about Hohfeld by Jack Balkin and Joseph Singer.)
Still, although Ordered Liberty is very different from what I expected it to be, it is solid and engaging and informative as a work of American constitutional theory. Among the issues covered most extensively in the book are abortion, same-sex marriage, and conflicts between freedom of religion and principles of equality. Fleming and McClain expound the intricacies of those issues in contemporary American constitutional law lucidly and perceptively. Quite a few other areas of controversy in the present-day constitutional law of the United States, such as certain restrictions on freedom of expression, likewise receive considerable attention. (At some junctures, one wishes that the authors had elaborated their views more expansively. For instance, in response to the U.S. Supreme Court’s recent decision that the members of the vile Westboro Baptist Church cannot constitutionally be held liable in tort for their odious protests at military funerals, Fleming and McClain suggest that the Court erred in its judgment. However, no lines of reasoning are provided to back up that suggestion. Because I believe that the Court’s decision was correct—despite the rebarbativeness of the victorious appellees—I would have welcomed the presentation of arguments in support of Fleming’s and McClain’s contrary view of the matter.)
The first half of Ordered Liberty, focused chiefly on the issue of abortion, gets somewhat bogged down through its excessively long engagement with the jeremiads of Mary Ann Glendon. Glendon’s cranky conservatism strikes me as neither sufficiently deep nor sufficiently original to deserve the amount of attention bestowed upon it by Fleming and McClain. At any rate, the principal aim of the first half of the book is to establish that liberalism’s emphasis on the rights and liberties of individuals is perfectly consistent with legal-governmental measures to channel people’s doings into responsible patterns of behavior. Drawing on the work of Dworkin among others, Fleming and McClain persuasively distinguish between the encouraging of responsibility and the coercing of conformity. Whereas liberals generally oppose the latter in numerous aspects of the lives of individuals, they should and do countenance the former.
To be sure, the distinction between the encouraging of responsibility and the coercing of conformity—the distinction between carrots and sticks—can become blurred. Fleming and McClain are rightly worried about the coerciveness of some of the techniques prescribed by certain state legislatures to encourage responsible decision-making on the part of women who are contemplating whether to undergo abortions. Furthermore, they explore at some length how the federal government in the United States seeks to elicit compliance with principles of equality by attaching conditions to many of the benefits (such as tax-exempt statuses) that it distributes. In contexts involving the attachment of such conditions, where the benefits distributed by the federal government can make the difference between the solvency and the insolvency of organizations, the distinction between the encouraging of responsibility and the coercing of conformity has largely disappeared. Still, elusive though that distinction is in such contexts, there are sundry other contexts in which it is clear-cut. As Fleming and McClain aptly emphasize, liberals should and do favor measures that will encourage individuals to fulfill the moral responsibilities incumbent on them as members of a broader society and of groups within that society. Liberals should and do support the cultivation of civic virtues in schools and other settings.
In the second half of the volume, Fleming and McClain train their attention sustainedly on same-sex marriage. On that issue, and also in the rest of the book when they are primarily addressing other issues such as abortion, they declare that their contribution to liberal constitutionalism is mildly perfectionist. Political philosophers who write for or against perfectionism, however, will very likely feel somewhat puzzled. Fleming and McClain, who draw heavily upon Dworkin and Rawls, are clearly much closer to anti-perfectionist strands of liberalism than to perfectionist strands. They intermittently claim that their advocacy of certain policies (such as the introduction of same-sex marriage or the relaxation of restrictions on abortion) is perfectionist because their justifications for their positions reside in promoting the autonomy of individuals. Nonetheless, what they are really endeavoring to bring about is an expansion of opportunities for the attainment of autonomy: an expansion of opportunities that can readily be embraced by Rawlsians and other anti-perfectionists as well as by perfectionists. Fleming and McClain appear to recognize as much at some other junctures, where they invoke autonomy—really the expansion of opportunities for the attainment of autonomy—as a non-perfectionist value. Their commitments to principles of equality and freedom and privacy, moreover, are characteristic of Rawlsians and many other anti-perfectionist liberals. Similarly, the civic virtues lauded by Fleming and McClain are championed by Rawlsians as well; in the eyes of Rawlsians, those virtues amount to a sense of justice and to support for just institutions. Hence, political philosophers might conclude that the perfectionism espoused by Fleming and McClain is so mild as to be nonexistent.
However, one gains a much clearer sense of the perfectionist character of Ordered Liberty when one keeps in mind that it is a work of constitutional theory rather than a work of political philosophy. Fleming and McClain are pitting themselves against a certain theory of constitutional adjudication—jural minimalism—associated especially with the work of Cass Sunstein. That is, they are impugning the notion that the sole proper role of judges in constitutional cases is to proceed with cautiously narrow justifications for decisions that are reached predominantly through analogical reasoning without invocations of broad moral principles. Sunstein’s jural minimalism calls for judges to exhibit great deference toward democratic institutions such as legislatures (both on grounds of democratic legitimacy and on practical grounds relating to the avoidance of popular backlashes). Fleming and McClain use the term “perfectionism” to designate their challenge to Sunstein’s insistence on judicial circumspection. On the one hand, when dealing with issues of public policy where the basic rights of individuals are not at stake, courts should generally defer to legislatures and other democratic institutions. On the other hand, when dealing with matters that pertain to the basic rights of individuals, judges are both entitled and obligated to give effect to broad principles of liberty and equality and privacy by invoking those principles to nullify or modify any legislative enactments that contravene them. Although this affirmation of the legitimacy of far-reaching moral deliberations in constitutional adjudication will of course be familiar to readers of Dworkin (who also assailed Sunstein’s minimalism in some of his writings), Fleming and McClain adeptly connect their critique of Sunstein to the controversies over same-sex marriage. Both their critique of his ideas and their exploration of those controversies are enriched in the process—as they show that, by Sunstein’s own reckoning, any adjudicative determination reached in a supposedly minimalist manner must itself be grounded on the broad principles of political morality from which such a determination ostensibly prescinds.
As should be evident, my assessment of Ordered Liberty is favorable. McClain’s and Fleming’s achievement in the domain of American constitutional theory is to be commended. However, I will close with a complaint that is directed against the publisher rather than against the authors. When two authors have succeeded in writing a long and valuable tome, they are ill served by a publisher’s dumping of all the notes at the end of the volume. In virtually every other Harvard University Press book that I have read during the past couple of decades, the notes are likewise shunted to the end. Especially given the sophisticated technology available to publishers in the twenty-first century, there is no justification for such a shabbily reader-disdaining practice.