Civic Virtues, Public Values, and Political Liberalism: A Further Response to Corey Brettschneider
James E. Fleming & Linda C. McClain
We thank Corey Brettschneider for his further post on political liberalism, civic virtues, and responsibility. He makes a number of claims about what political liberalism does and does not permit. We should make clear that in our book, Ordered Liberty, we develop a constitutional liberalism (for the American constitutional order) by analogy to John Rawls’s political liberalism. We do not elaborate political liberalism as such nor do we claim to be explicating Rawls’s particular formulation of it. Nonetheless, for the reasons stated below, we believe our constitutional liberalism is compatible with Rawls’s view.
First, contrary to Brettschneider, we do not think political liberalism as such draws the line he draws between promoting public values and inculcating civic virtues (or the line he draws between respecting rights and encouraging responsibility). We see political liberalism as a family of views, some thinner, others thicker. He develops a thinner conception of political liberalism in which he draws these two lines. We develop a thicker conception of it in which we do not. We draw the two lines that Rawls himself draws: (1) between political liberalism and comprehensive moral views and (2) between the political virtues (what we call civic virtues) essential to sustaining political liberalism and the moral virtues “that characterize ways of life belonging to comprehensive religious and philosophical doctrines.” (Rawls, Political Liberalism, 194-95)
For example, Brettschneider suggests that, in justifying the cases involving clashes between the First Amendment’s protection of freedom of association and the Equal Protection Clause’s concern for equal citizenship, we go beyond justifying government promoting equal citizenship for women, African-Americans, and gays and lesbians “to issues of civic good.” In doing so, he claims, we go beyond political liberalism. We are not sure what he means here. Perhaps he means, e.g., that in Christian Legal Society v. Martinez, the Supreme Court mentioned that Hastings Law School justified its nondiscrimination policy regarding gays and lesbians on the ground that it “encourages tolerance, cooperation, and learning among students,” and Justice Stevens in concurrence justified the policy on the ground that it promotes “tolerance, understanding, and respect.” (We discuss these matters in Ordered Liberty, 166-67.) We certainly would endorse these justifications. Encouraging tolerance, cooperation, understanding, and respect would seem necessary to secure equal citizenship for gays and lesbians. We hardly see how or why political liberalism would exclude offering such justifications for a nondiscrimination policy. Indeed, such virtues are among the very political or civic virtues that Rawls says political liberalism would support. For example, Rawls writes: “The virtues of political cooperation that make a constitutional regime possible are, then, very great virtues. I mean, for example, the virtues of tolerance and being ready to meet others halfway, and the virtue of reasonableness and sense of fairness. When these virtues are widespread in society and sustain its political conception of justice, they constitute a very great public good, part of society’s political capital.” He refers to such virtues as “sustaining virtues.” (Political Liberalism, 157) He also writes: “Since the ideals connected with the political virtues are tied to the principles of political justice and to the forms of judgment and conduct essential to sustain fair cooperation over time, those ideals and virtues are compatible with political liberalism. They characterize the ideal of a good citizen of a democratic state.” (194-95) He then reiterates the distinction we quoted above, between such political virtues and moral virtues characterizing comprehensive moral views.
This brings us to a further point. We fear that Brettschneider, in supporting the government trying to promote public values like equal citizenship, while forbidding it to inculcate civic virtues necessary to sustain them, would leave us with citizens who do not possess the civic virtues, capacities, and dispositions that would enable them to be persuaded to adopt the public values like equal citizenship. A political liberalism that supports promoting public values like equal citizenship, but neglects (or worse, forbids) inculcating civic virtues in its citizens, is unlikely to be persuasive, stable, or successful (or even “possible,” to use Rawls’s formulation).
Second, more generally, Rawls contemplated that political liberalism entailed governmental provision of civic education and inculcation of political virtues. In speaking of “the requirements the state can impose” through education of children, he wrote: “their education should also prepare them to be fully cooperating members of society and enable them to be self-supporting; it should also encourage the political virtues so that they want to honor the fair terms of social cooperation in their relations with the rest of society.” (Political Liberalism, 199) At this point, Rawls addresses the objection that civic education “requiring children to understand the political conception in these ways is in effect, though not in intention, to educate them to a comprehensive liberal conception” (an objection like that which Brettschneider makes against our view). Rawls replies: “the only way this objection can be answered is to set out carefully the great differences in both scope and generality between political and comprehensive liberalism.” Once again, the line Rawls draws is not between public values and political virtues, but (1) between political liberalism and comprehensive liberalism, and (2) between political virtues sustaining political liberalism and moral virtues characterizing comprehensive moral views. Moreover, we would point out that one of the leading accounts of civic education in recent years has been written by a liberal who is broadly speaking a political liberal: Stephen Macedo’s Diversity and Distrust: Civic Education in a Multicultural Democracy. It also bears mentioning that Macedo specifically calls his version of political liberalism a “civic liberalism” because of its concern for civic education and civic virtues. Macedo also advocates governmental inculcation of liberal virtues in his book, Liberal Virtues: Citizenship, Virtue, and Community in Liberal Constitutionalism. If we go beyond political liberalism because we go beyond government promoting public values to its inculcating political or civic virtues, then so too do Rawls and Macedo!
Third, as we stated at the outset, our project in Ordered Liberty is not to explicate Rawls’s view as a matter of political philosophy, but to develop a constitutional liberalism by analogy to Rawls’s political liberalism. Doing so in the context of the American constitutional order entails working up an account that fits and justifies the leading American constitutional cases and our constitutional practice. Those cases and practice recognize the centrality of civic education to inculcate civic virtues for responsible citizenship (and also acknowledge considerable latitude for government to encourage responsible exercise of rights). Like Ronald Dworkin, we recognize that liberals can either (1) sit on the sidelines and object to civic education, inculcation of civic virtues, and encouragement of responsibility in the exercise of rights or (2) develop a conception of liberalism that takes responsibilities and virtues as well as rights seriously. We do the latter by developing a constitutional liberalism that aims to fit, justify, and bound the inculcation of civic virtues and encouragement of responsibility in our constitutional order, not to defend a thin political liberalism that rejects these undertakings as out of bounds notwithstanding these cases and practice.
By contrast, because Brettschneider writes primarily in political theory rather than in constitutional theory concerning the American constitutional order, he conceives his project to be developing ideal political theory. One of us (Fleming) made a similar observation in an essay contrasting Brettschneider’s previous book in political theory, Democratic Rights: The Substance of Self-Government, with Fleming’s previous “kindred” book in constitutional theory, Securing Constitutional Democracy: The Case of Autonomy. The American constitutional practice is plainly not that of a political theory of political liberalism that permits the government to promote public values but not to inculcate civic virtues or encourage responsibility in the exercise of rights. That form of political liberalism could not account for, but would reject, these significant features of our constitutional practice. By contrast, our constitutional liberalism, which takes not only rights and public values but also civic virtues and responsibilities seriously, does fit and justify those aspects of our constitutional practice.
Finally, at a general level, Brettschneider interprets political liberalism as excluding civic republicanism as such, whereas we understand political liberalism as a synthesis of liberalism and civic republicanism. The “first fundamental question” Rawls framed in Political Liberalism (4-5) was how to resolve the long-standing conflict in political theory between the traditions of classical republicanism and liberalism. This conflict is encapsulated in Benjamin Constant’s famous contrast between, respectively, the tradition associated with Jean-Jacques Rousseau, which gives primacy to the liberties of the ancients, such as the equal political liberties and the values of public life, and the tradition associated with John Locke, which gives greater weight to the liberties of the moderns, such as liberty of conscience, certain basic rights of the person and of property, and the rule of law. Rawls sought to resolve this conflict by synthesizing these two traditions within political liberalism. As he put it in his reply to Habermas’s argument that he gave priority to the latter tradition over the former, the basic liberties corresponding to the liberal and civic republican traditions are “co-original and of equal weight” within political liberalism. (Political Liberalism, 412-13) Furthermore, Rawls explained that “classical republicanism” includes the view that citizens “must also have to a sufficient degree the ‘political virtues’ (as I have called them)” and stated that, “[w]ith classical republicanism so understood, justice as fairness as a form of political liberalism has no fundamental opposition . . . because classical liberalism does not presuppose a comprehensive religious, philosophical, or moral doctrine.” (Political Liberalism, 205) The line Rawls draws is not Brettschneider’s line between public values and political virtues, or between liberalism and republicanism, but that between political liberalism and comprehensive moral views. (Similarly, Frank Michelman and Cass Sunstein, the most prominent figures in the revival of civic republicanism in constitutional theory in recent years, both sought to move beyond the clash between liberalism and civic republicanism to syntheses; indeed, Sunstein called his synthesis “liberal republicanism.” Michelman clearly conceived his liberal republicanism as a form of Rawlsian political liberalism and Sunstein argued that his synthesis was compatible with Rawls’s view.)
In sum, our constitutional liberalism’s encouragement of political or civic virtues and responsibility do not go beyond political liberalism as such, though they evidently go beyond alternative, thinner conceptions of political liberalism like Brettschneider’s. For us as for Rawls, the central lines are between (1) political liberalism and comprehensive moral views and (2) between political virtues necessary to sustain political liberalism and moral virtues characterizing such comprehensive moral views, not Brettschneider’s distinction between public values and civic virtues. We no doubt will continue this discussion with Brettschneider in the upcoming Concurring Opinions symposium on his book.