The Substance of Constitutional Liberalism: Response to Robert Tsai

James E. Fleming & Linda C. McClain

We thank Robert Tsai for his praise of our book, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) and for raising questions concerning “what work . . . the language of civic republicanism do[es] in [our] theory.” We presented our theory as a constitutional liberalism, developing it by analogy to John Rawls’s political liberalism. We also characterized it as a synthesis of liberalism, civic republicanism, and feminism. Finally, we called our constitutional liberalism a “mild form of perfectionism,” an alternative to “liberal neutrality” and to comprehensive liberal perfectionism. Despite these formulations, Tsai states that “it is possible to read [our] thoughtful book as requiring the use of civic republicanism as the primary language through which to fight over constitutional rights.” That would be a misreading. Through responding to Tsai’s questions, we shall sketch the substance of constitutional liberalism elaborated in the book.

At the outset, we should observe that theories like ours – which articulate a third way between warring alternatives (e.g., “liberal neutrality” versus comprehensive liberal perfectionism) or synthesize traditions that are commonly viewed as conflicting (e.g., liberalism versus civic republicanism) – are bound to generate questions concerning how thin or thick they are, whether they are reducible into one or the other of the conflicting traditions, and the like. To illustrate the first, a proponent of a comprehensive liberal perfectionism would find our “mild form of perfectionism” too thin, while from the standpoint of liberal neutrality it would seem too thick. (See our responses to Sotirios Barber and Eric Blumenson, respectively, in the recent symposium on the balkinization blog: http://balkin.blogspot.com/2013/02/ordered-liberty-response-to-sotirios.html and http://balkin.blogspot.com/2013/02/ordered-liberty-response-to-eric.html.) Tsai illustrates the second: he reduces our Rawlsian constitutional liberalism into the “language,” “vocabulary,” or “grammar rules” of civic republicanism.

Again, Tsai opens by asking: “[W]hat work does the language of civic republicanism do in [our] theory?” “One possibility,” he suggests, “is that civic republicanism organizes constitutional debate.” He continues: “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.” Here, we assume he is alluding to our characterization of our theory as a constitutional liberalism by analogy to Rawls’s political liberalism, not a comprehensive liberal perfectionism.

As we observe: “‘Perfectionism’ is the term sometimes given to the idea that government should actively help citizens to live good and valuable lives” or to shape citizens “pursuant to a vision of human virtue, goods, or excellence.” (4, 9) Our constitutional liberalism posits the responsibility of government and civil society to inculcate civic virtues and to foster citizens’ capacities for democratic and personal self-government and, in that sense, live good lives. To that extent, it is a “mild form of perfectionism.” (4) Still, we do draw several lines between our constitutional liberalism and comprehensive liberal perfectionism. We contend that government may promote civic virtues and the capacities for democratic and personal self-government, but may not promote moral virtues and the good life simpliciter. We also argue that the civic virtues that government may inculcate and the moral goods that it may promote are “common to a number of competing comprehensive conceptions, for example, . . . commitment, mutuality, companionship, intimacy, fidelity, and family.” (190) Excluded is governmental imposition of moral virtues or moral goods characterizing ways of life belonging to a particular comprehensive conception of the good. But our constitutional liberalism furthers such a “formative project” and excludes such comprehensive perfectionist arguments on the basis of a substantive liberal vision, not through requiring the “language,” “vocabulary,” or “grammar rules” of civic republicanism.

Our constitutional liberalism also, in Tsai’s terms, “organizes constitutional debate” through the way it frames clashes of rights, or more precisely, clashes of higher order values or interests that underlie rights. This is the subject of Chapter 6 (146-76), which focuses on conflicts between liberty and equality. We put forward a framework, adapted from Rawls’s political liberalism, for addressing such conflicts. It contemplates the “mutual adjustment” of the basic liberties to “secure the family of basic liberties as a whole,” no one of which by itself is absolute. We illustrate this framework by discussing two cases that involve clashes between the First Amendment’s protection of freedom of association and the Equal Protection Clause’s concern for equal citizenship (Roberts v. United States Jaycees and Boy Scouts of America v. Dale), along with two cases that concern conflicts between religious and political virtues and values (Bob Jones University v. United States and Christian Legal Society v. Martinez). But we go beyond framing the conflicts to making substantive arguments for how all four cases should be resolved. We argue that Roberts, Bob Jones, and Christian Legal Society were rightly decided and that Dale was wrongly decided.

We simply do not understand how Tsai can interpret our theory as being “indifferent to which outcome is selected so long as the choice is defended in the right vocabulary,” why he thinks our constitutional theory does not “help us choose among attractive possibilities,” or why he thinks our vision “resembles a procedural approach to constitutional law.” Our theory in fact does, in his terms, “strongly shape[] particular outcomes.” We resolve all four cases on the basis of our constitutional liberalism’s substantive commitment to securing the status of equal citizenship for all: for women (Roberts), African-Americans (Bob Jones), and for gays and lesbians (Dale and Christian Legal Society). There is nothing “indifferent” or “procedural” about our account of any of these cases. And so, we do not merely offer a “vocabulary” or “language” of civic republicanism; we do not merely put forward “grammar rules” or “substantive meta-norms.” Instead, we resolve these conflicts on the basis of the substantive commitments of our constitutional liberalism.

We are surprised that, although Tsai asks “what work . . . civic republicanism do[es] in [our] theory,” he does not take up the part of our book in which we specifically address Michael Sandel’s civic republican challenge to Rawls’s political liberalism and to constitutional theories like our constitutional liberalism. In Chapter 7 (176-206), we argue, contra Sandel, that constitutional liberalism can embrace not only substantive arguments for rights grounded in choice or autonomy, without regard for the good of what is chosen, but also substantive arguments for rights grounded in the moral goods or virtues fostered by protecting them (e.g., commitment, intimacy, and fidelity). Thus, we meld liberal arguments for protecting autonomy with civic republican perfectionist arguments for promoting moral goods. And in Chapter 8 (207-26), we criticize Cass Sunstein’s minimalist republicanism for taking flight from substantive theories like our own to a procedural theory of “leaving things undecided.” Our argument throughout these two chapters is substantive, not merely about “language,” “vocabulary” or “grammar rules.” We argue that Sandel’s civic republican perfectionism is too thick, that Sunstein’s minimalist republicanism is too thin, and that our substantive constitutional liberalism is just right.

For these reasons, we are baffled by Tsai’s suggestions that we “seem skeptical of grand theories and perfectionist approaches” and that our vision eschews substance and “resemble[s] a procedural approach to constitutional law.” With all due respect, no one has ever before accused us of being skeptical about grand theories or of avoiding substantive questions in favor of a procedural approach. First of all, our book builds upon the grandest theories of them all in political and constitutional theory, those of Rawls and Ronald Dworkin. Second, one of us (Fleming) is typically criticized for being too confident concerning grand theories, having developed, in Securing Constitutional Democracy: The Case of Autonomy, a grand “substantive Constitution-perfecting theory” that aspires to interpret the Constitution so as to make it the best it can be, to say nothing of having spent an entire career criticizing other constitutional theories for “taking flights from substance to procedure.”

Finally, Tsai states that we “praise” or “especially like solutions of ‘shared sovereignty’ grounded in the idea that multiple communities have a claim on individuals.” We do nothing of the sort. We make four basic points concerning what Tsai calls “shared sovereignty”: (1) in general, government and civil society share responsibility in a formative project of inculcating civic virtues and fostering citizens’ capacities for democratic and personal self-government; (2) in particular, schools and families share responsibility for fostering those capacities for self-government; (3) many of the conflicts concerning rights stem from such shared responsibility; and (4) the virtues and values of government and civil society sometimes may be congruent but sometimes may conflict, leading to challenging questions concerning pluralism and toleration. Our project is to develop a constitutional liberalism that, in Dworkin’s formulation, “fits and justifies” these features of our constitutional order, not to praise solutions of “shared sovereignty.” And so, we don’t celebrate “shared sovereignty” so much as acknowledge it and offer an account of it as part of a larger substantive theory of constitutional self-government.

Tsai also states that he is uncertain of “what virtues are being maximized through shared sovereignty solutions.” We do not argue for maximizing any virtues through any such solutions. Rather, we aim to show that the constitutional cases protecting ordered liberty have not protected basic liberties absolutely, through strict scrutiny, but have allowed considerable latitude to government to encourage responsibility in the exercise of rights and to inculcate civic virtues and promote moral goods or virtues. That is the takeaway from our discussion in Chapter 9 (237-72) of the “rational continuum of ordered liberty” as against the “myth of strict scrutiny for fundamental rights.”

To recapitulate, and in doing so respond to Tsai’s closing questions about “how thick or thin, and how substantive or procedural,” our theory is: (1) our constitutional liberalism is thicker than liberal neutrality or Sunstein’s minimalist republicanism but thinner than comprehensive liberal perfectionism and (2) it is substantive rather than procedural. Our constitutional liberalism pursues ordered liberty and the other ends proclaimed in the Preamble of the Constitution through pursuing a substantive vision of securing not only the procedural liberties that are preconditions for deliberative democracy but also the substantive liberties that are preconditions for deliberative autonomy. That, in short, is the substance of constitutional liberalism.

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