James E Fleming and Linda C McClain,Ordered Liberty: Rights,Responsibilities,and Virtues

Reviewed by M Christian Green, Senior Fellow, Center for the Study of Law and Religion, Emory University

The Akan people of West Africa have a symbol, the Sankofa bird, which is depicted as a bird flying forward while looking backward with an egg in its mouth. The proverb that goes with the symbol is translated from the Akan language as “it is not taboo to go back and fetch what you forgot.” In other words, we must go back to our roots in order to move forward. The backward-facing bird symbolizes the watchful eye on the past; the egg in the bird’s mouth symbolizes the future. The symbol occurred to me several times in reading James Fleming’s and Linda McClain’s exploration of “constitutional liberalism” in Ordered Liberty.

In the first place, the symbol seems an apt reflection of the way in which Ordered Liberty incorporates and builds upon work in constitutional theory and in feminist legal theory that Fleming and McClain, respectively, have been doing for the last two decades—severally and sometimes jointly as a husband-and-wife team—in developing and defending a legal and political theory of “constitutional liberalism” that responds to critiques that liberalism privileges rights and autonomy over responsibility and community. These previous writings, which in many cases have been incorporated into the text and arguments of Ordered Liberty, have been presented and published in other fora, particularly law reviews, which are duly detailed in the book’s acknowledgments. Questions are sometimes raised when legal scholars republish law review material that is available online for free, but for wider publics outside of academia, who lack access to expensive searchable databases locked behind ever higher paywalls, and for scholars in other disciplines, such as religion, a thorough reworking of law articles into book form can be very valuable, particularly when the arguments come together in as coherent and lucid a form as they do in Ordered Liberty.

A second way in which the Sankofa symbol is relevant has to do with the perspective of the reviewer reading the book a year after publication—a gap which affords the opportunity to benefit from and add to the observations of previous reviews. In the case of Ordered Liberty, there have been several such reviews in the law review literature, including a notable book symposium in the law journal Constitutional Commentary. These reviews have been largely positive, though with some attention to the aforementioned concern about law review recycling and to the at times somewhat dated feel of the authors’ engagement with the liberal−communitarian debates of the 1980s and 1990s. But the revisitation of older articles and arguments is far from fatal and may even be part of the book’s value.

In this review, I have the distinctive opportunity to assess Ordered Liberty’s contributions to the critical study of religion. This is in some ways a difficult task, for while the book addresses in great detail contemporary debates over abortion, same-sex marriage, and other issues in which religion is certainly a factor, it is first and foremost a book on constitutional theory, aimed primarily at legal scholars and political theorists. In light of the shrill pitch of political debate and rapid pace of social evolution on these issues in recent years, the topics of abortion and same-sex marriage are controversial and moving targets, whose snapshot at any particular time can become dated or obsolete, even as the debates themselves move in different directions. In recent years, the abortion debate seems to have retrogressed to a reconsideration of the value and morality of contraception, even as same-sex marriage equality has progressed in both social comfort level and state legislative legitimacy. Indeed, the ebb, flow, multidirectionality, and multifaceted nature of these debates at a time of notable political division and polarization is enough to give our proverbial Sankofa bird whiplash!

In that climate, what Fleming and McClain provide is a thorough background on the development of communitarian, civic republican, and progressive understandings of rights, responsibilities, virtues, and the common good, as well as theories of neutrality, toleration, respect, the role of civil society, and the question of whether government can or should play a role in cultivating the “seedbeds of virtue” and promoting a vision of the good life (1). They draw significantly on the work of political philosophers John Rawls and Ronald Dworkin in addressing these questions and in defending “constitutional liberalism” against “charges of irresponsibility, neutrality, wrongness, and absoluteness” (1). In later chapters, they also take up at length the “perfectionist” political theory of political philosopher Michael Sandel (chap. 7) and the “minimalist” constitutional theory of legal scholar Cass Sunstein (chap. 8), applying each theory to a remarkably comprehensive set of constitutional cases on abortion, same-sex marriage, and other matters, and addressing their various implications for theories of constitutional liberalism. Perhaps the best description of “constitutional liberalism” is given early on, when the authors state: “Our constitutional liberalism posits the responsibility of government and civil society to help persons develop their moral capacities for self-government and, in that sense, live good lives. To that extent, it is a mild form of perfectionism” (4). They defend a process of “rational judgment” along a “rational continuum” of “ordered liberty,” not “liberty as license” (1). Government is to undertake a “formative project of shaping or steering citizens pursuant to a vision of human virtue, goods, or excellence” (9 and chap. 5).

The invocation of civil society (chap. 4), of which religion is certainly part, and of perfectionism, with its hints of redemption and even salvation, clearly place the book’s subject matter in the domain of religion—though that may not always seem apparent to religion readers. The book is chock full of constitutional theories and constitutional cases—reading like a law school casebook in some parts. The debates over procedural and substantive Due Process, the relationship between the Due Process and Equal Protection Clauses, and the minutiae of intermediate and strict scrutiny, even when as accessibly discussed as the authors discuss them, are likely to go over the heads of religion readers. This reviewer has had the experience of teaching divinity school courses that involved reading case law on affirmative action, abortion, euthanasia, the death penalty, and same-sex marriage, and considering the relationship between legal arguments and religious rationales in fostering social change. Even with the heavy influence of religious perspectives and movements on these issues, appreciating the myriad legal and constitutional angles can be tough going for aspiring ministers, religion scholars, and social activists—even if many conclude the journey to be worth it in the end.

However, that is the rear view to be left behind with other critiques. What I am really interested in pursuing is the future possibility of Fleming and McClain building upon what is in the end an excellent survey of the legal and political terrain up to now in a future collaboration that might take up the religious dimensions and implications more squarely—a religion sequel that may be the golden egg being carried in the mouth of our Sankofa bird. For even as some reviewers have criticized Ordered Liberty for focusing on outdated arguments and issues, the theory of constitutional liberalism that Fleming and McClain propose has become even more important in the context of some newer issues of law and religion that have emerged in ways that beg for the sort of constitutional liberal analysis that Fleming and McClain could provide.

One of the hottest topics in religious studies of late has been the demise of the “secularization thesis” and the move into a “postsecular” era characterized by religious resurgence that can be rather aggressive in its quest for recognition. What should a constitutional liberal order—with the government engaged in “formative projects” of promoting a vision of the good life and its associated virtues—make of religious groups who deviate substantially from that vision? Some of the previous reviews of Ordered Liberty call for more attention to matters of virtue and tolerance in the area of hate speech, which Fleming and McClain address briefly at points in their book with reference to the recent and notorious military funeral protests of the anti-homosexual Westboro Baptist Church. How should a constitutional liberal order balance religious freedom and freedom of expression—both of them venerable constitutional freedoms, but ones which sometime threaten civil society itself, not to mention virtues of tolerance and respect? Are there religious worldviews that the government must deem intolerably inconsistent with the wider social good? One thinks of the recent controversy at Canada’s York University of a male student who sought reprieve from attending class discussion sections that would require him to interact with women.

Indeed, the quest for religious accommodations and exemptions has become especially controversial, as in the recent US Supreme Court decision in Hosanna Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (2012), the joined suits of private corporations Hobby Lobby Stores and Conestoga Wood Specialities Corporation against Secretary of Health and Human Services Kathleen Sebelius soon to be heard at the Supreme Court, and a further suit against Sebelius by the University of Notre Dame that is also winding its way through the federal court system. Should religious organizations be able to discriminate against employees with disabilities as Hosanna Tabor was allowed to do by reason of a “ministerial exemption”? Are religious organizations now “persons” under the decisions Citizens United v. Federal Election Commission (2010) and McCutcheon v. Federal Election Commission (2014) in a way that would include religious universities, but also corporations with religious CEOs, such that they should be exempt from such laws as the Affordable Care Act (ACA)? Do employees of religious organizations give up their right to the protection of labor laws or to affordable health care that includes contraceptive services? Can private employers impose their religious views on employees when it comes to contraceptive rights, or potentially other rights besides? The University of Notre Dame is required under the ACA to submit a letter to the government certifying that it has transferred responsibilities for contraceptive provision to a third party payer, as a result of its conscientious objection to providing contraceptive benefits to its employees directly. Does the mere fact of having to register with the government in order to receive the religious exemption amount to complicity with evil and violate a religious organization’s religious freedom to promote a countercultural vision of reproduction and family life against the state’s vision of the good of every individual’s right to universal and comprehensive healthcare?

These issues were emerging as the authors were bringing Ordered Liberty to publication. In fact, Fleming and McClain presage the coming contraception controversies at one point (79), and their discussion of the government’s role in promoting civic virtues through education and how the homeschooling movement may thwart some of these state objectives is particularly good (139−145). Indeed, further discussion of how the government should promote civic virtue in relation to the important institutions of family, school, and religion that Fleming and McClain identify in Ordered Liberty—some of them already taken up by McClain in her earlier book The Place of Families (2006)—would be an excellent departure point for further exploration of the relationship and balance between these spheres of society and the limits of constitutional liberalism.

The United States is currently in a context in which not only do rights need to be joined with responsibility, per the old liberal−communitarian debates, but also human beings have been joined by corporations as “persons” bearing rights and, hopefully, responsibilities. Today, the potential for individual autonomy to be overtaken by the legal power of the state may turn out to be nothing compared to the potential for the state to be overtaken by the financial power of corporate “persons” with newly recognized rights. And some of these corporate “persons” in our postsecular world may be religious organizations claiming autonomy to pursue their own distinctive visions of virtue and the common good that do not always sit well with the “formative projects” of constitutionally liberal government. These are new issues of law, religion, and politics that Fleming and McClain take up in future flights of theory on constitutional liberalism.