Democratic Values v. Virtues: Brettschneider on Ordered Liberty

How can a liberal democracy promote its central values, such as autonomy and non-discrimination, at the same time that it protects basic rights, such as free speech? One common view is that these two goals are incompatible. According to this view, free speech rights commit liberal democracy to “neutralism,” which prohibits favoring any values. Under a neutralist approach, liberal democracy cannot promote its core values of autonomy and non-discrimination. It has no role in encouraging responsibility and virtue among its citizens.

James Fleming and Linda McClain offer a powerful challenge to the neutralist view. They propose an account of “autonomy as responsibility” that reconciles the two goals of protecting rights and promoting a set of public values and virtues. Liberal democracy upholds the rights of citizens out of respect for their autonomy, or their ability to use their reason freely to choose their own ends. For citizens to be able to make decisions as autonomous agents, they must have the right to choose their religion, associations, and political positions. But it is also important in an autonomy respecting regime that the government cultivate and encourage good decision-making. It would be pointless to respect autonomy if no actual people exercised their autonomy well. The government thus has an obligation to promote the capacity of citizens to make better and more responsible decisions. The government, including the Supreme Court, should pursue the twin aims of protecting rights and promoting individual autonomy and responsibility. This view differs from perfectionist theories, which advance particular comprehensive doctrines, and neutralist accounts, which refuse to promote values altogether.

Fleming and McClain’s two-pronged approach has important implications in matters of education. The government should regulate home-schooling and use public education and to promote autonomy and responsible decision-making. Their approach echoes the dissent by Justice William Douglas in Yoder, where he writes that compulsory education for children is justified to prepare them to become autonomous citizens who are not dependent on the wishes of their parents.

Fleming and McClain tie their view to a balancing approach to constitutional law. They argue against a rule-like approach that treats constitutional rights as inviolable. Specifically, they acknowledge that constitutional cases often involve a trade-off between autonomy as respect for rights, and autonomy as the promotion of responsibility. The Supreme Court, they argue, has often prioritized the former, but it must balance both of these ambitions. Government should protect rights of autonomy, but it equally must be concerned to promote responsible decision-making in the form of autonomy and responsibility. As they note in their post, autonomy rights to freedom of association should, at times, give way to concerns for encouraging the responsibility of citizens.

Before I distinguish my view from that of Fleming and McClain, I should say that we are all kindred spirits in the project of developing a liberalism that is both rights protecting and also promotes liberal values. But my own view has distinctive features that might give us different resources in replying to critics. The distinctions and similarities between our approaches will become clear in the following weeks when Concurring Opinions moves to a discussion of my book, When the State Speaks, What Should It Say? How Democracies Can Promote Equality and Protect Expression (Princeton University Press, 2012). I outline two distinctions and suggest how they offer a response to some of the criticisms raised in this engaging symposium.

The central question for accounts like ours is what values should be promoted. The first distinction between our views is that, unlike Fleming and McClain, I avoid the notions of “virtue” or “civic virtue.” For them these terms are intimately tied to the kind of individual responsibility they wish to promote. Fleming and McClain are clear that they want to avoid some forms of perfectionism, or the political theory that the state must take a stand on conceptions of the good. But I worry the terms “virtue” and “civil virtue” are too tied to thinkers who believe that the liberal state should endorse a conception of the good life. These worries have arisen in both Kent Greenfield’s posts, which tend to worry that there is too much civic patriotism in Fleming and McClain. These concerns have also cropped up in Mark Graber’s post. Specifically, this post raises several issues on which Fleming and McClain might be thought to be advancing not only liberal values, but also a conception of the good. For instance, they take a stand not only on a right to an abortion, but suggest that the government might have a role in aiding women as they decide whether to have an abortion. Graber also provocatively asks whether their position on Bob Jones might cause them to take a stand on issues, such as whether inter-faith dating is compatible with civic republicanism.

On my view it is essential that there are affirmative values that should be promoted by the liberal democratic state. But I do not think that the values that should be promoted are “virtues” that are tied either to individual accounts of the good or one of “civic good.” On my account, the state should only promote the democratic values that underlie a commitment to rights, including the ideal of equality under law. Namely it should defend the ideal of “free and equal citizenship” that justifies rights protections in the first place. Thus my approach is deontological, not perfectionist or even partially perfectionist. Fleming and McClain seem, at least to the critics in this symposium, to go beyond encouraging democratic values, and instead embrace a particular conception of the good.

Some might want to see them embrace a clearly robust set of virtues for the government to promote. But I think Fleming and McClain should resist this temptation. To Graber, I would say that revoking tax-exempt status for Bob Jones University is justifiable not because of a concern for citizens’ virtue, but because the University is opposing democratic values. In particular, it is preaching racism and a notion of African Americans as second-class citizens. The University signaled its opposition to democratic values when it threatened to expel students who advocated the right to interracial marriage. In short, the core message of Bob Jones University opposed the ideal of equal rights under law. This is not true of institutions that merely advocate perpetuation of the faith. On that question, of whether inter-faith marriages are a good or bad thing, the state should simply be silent, because it does not concern democratic values. Similarly, I think that the question of whether or not to have an abortion is a matter of one’s conception of the good, and not a matter of democratic values.

Despite our many points of agreement, my most significant and second difference with Fleming and McClain concerns our approaches to balancing in First Amendment free speech protections. I am an absolutist when it comes to protections of free speech from coercion, and I reject balancing conceptions. Instead, I argue that the most robust speech protections should be combined with state criticism and even condemnation of hateful or discriminatory expression. This distinction is most evident when it comes to our different approaches to Boy Scouts v. Dale. On their view Dale was wrongly decided because on balance, the concern for promoting responsibility and protecting the rights of free association weighs in favor of limiting expression and association. On their view, the organization could be forced to make the right decision in favor of accepting gay scouts as members.

By contrast, I argue that the state can both protect the Boy Scouts’ right of free association, and still promote a message of equal citizenship. On my view, the state should both protect the Boy Scouts’ right to express its message and choose its members, at the same time that it condemns their discriminatory policy. In particular, I argue that the form of this condemnation could involve the discontinuation of the Boy Scouts’ nonprofit status. What is significant about Bob Jones, on my account, is that it did not prohibit the university from expressing a message of racial superiority. The IRS instead revoked a subsidy and tax privilege to the University. The loss of the subsidy must be distinguished from the denial of a right. While free speech and freedom of association entail rights to not be punished or coerced for one’s viewpoints, they do not entail a right to the official benefits of tax privileges. On my view 501 (c) (3), especially the benefit of tax-deductible contributions, is not a grant that should be distributed in a viewpoint neutral way. Rather, organizations that receive public subsidies or tax privileges should at minimum not oppose the ideal of free and equal citizenship. I thus propose that discriminatory organizations like Bob Jones, the Boy Scouts and the Westboro Baptist Church be protected in their right of free speech and association. However, the state should discontinue their public subsidies. This would guarantee their rights while robustly promoting the message of equal citizenship. The state should both protect and condemn messages that are contrary to democratic values.

Fleming and McClain have written an important work of constitutional theory and in many places we are in agreement. I have outlined two differences between our views in regard to their balancing approach to free speech rights and the use of the term “civil virtue.” I look forward to the discussion of the ways in which our projects pursue a common aim, while taking distinct approaches to promoting values.

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