The Recipe for Ordered Liberty: A Further Response to Robert Tsai

James E. Fleming & Linda C. McClain

We appreciate Robert Tsai’s gracious and clever post in response to our initial post concerning the substance of our constitutional liberalism. The metaphor of constitutional theory as recipe is well worth pondering. We are gratified that, whether or not he has reverse engineered from the theory to the recipe correctly, he thinks that “[w]hat [we] have cooked tastes pretty good.”

Tsai is correct that our book is an “effort to bridge not only intellectual divides but also partisan ones.” This probably lends itself to efforts, like his, to detect or measure the “parts” of liberalism, republicanism, and feminism that make up our civil liberalism. For example, as we take up prominent critiques of liberal rights, and liberalism more generally, made by communitarians, civic republicans, and civil society-revivalists, we point to common ground and show how civic liberalism has elements – or “parts” – that these critiques overlook. Or, when those critiques fault elements of liberalism that we believe are vital to and consonant with the U.S. constitutional order, we explain why, to use Tsai’s metaphor, they should be part of the mix. In this sense, we certainly are not cooking from scratch because we are working within a particular political and constitutional order and not simply trying to serve up the best possible political theory in the best of all possible worlds. As we say, in our response to Mark Graber, our constitutional liberalism is a form of “constitutional theory of the center.”

Another way to answer Tsai is to say that in “cooking” a theory, one doesn’t begin with or work from a recipe with definite doses of certain named ingredients. Instead, one concocts a stew from many ingredients, responding to this problem, anticipating that objection, drawing upon this argument from this source, building upon that argument from another source, and trying to pull it all together as an appealing stew. Once the stew is cooked, and the dinner guests conclude that it “tastes pretty good,” if one guest asks for the recipe the cook may not be able exactly to specify the exact portions of each ingredient!

We regret leaving Tsai “puzzled and mildly disappointed” with our points regarding “shared sovereignty.” Perhaps if we provide clarification, this portion of the stew will prove to be more satisfying. First, we sought to clarify that we were not celebrating or praising “shared sovereignty solutions,” but instead offering an account of it as a feature of our constitutional order. That is not to say that we do not think shared sovereignty is a good thing, just to say that our book does not praise or celebrate shared sovereignty solutions as such. We certainly can see the appeal in Tsai’s “inclinations” and “gravitat[ion] toward “‘shared sovereignty’ discussions.” And so, he need not be disappointed with our theory in this respect. We are grateful to him for challenging us to think more about the issue of shared sovereignty. Indeed, since our initial exchange with Tsai, Robin West has posted an intriguing argument about “sovereign citizens” and how citizens and the state share sovereignty. http://concurringopinions.com/archives/2013/03/sovereign-citizens-and-civic-responsibility.html/print/
Perhaps the opportunity, in this symposium, to think through and respond to her critique will allow us to give more thought to the different possible roles that “shared sovereignty” has in our constitutional order and how the constitutional liberalism we advance might propose “shared sovereignty solutions.”

Second, as Rawlsians, we perhaps reflexively reject the idea that constitutional liberalism is “maximizing” anything, whether it be liberty, equality, or civic virtues. (See John Rawls’s contrasts between utilitarianism and justice as fairness, as well as between teleological and deontological views in A Theory of Justice.) We did not say that we were not trying to promote civic virtues – we just said that we were not trying to maximize any virtues through shared sovereignty. We hope this point helps clear up Tsai’s puzzlement.

Tsai makes a fair point regarding procedure and substance in Ely’s theory as well as ours. But we would say that Ely proposes to perfect processes in virtue of his substantive political theory, a qualified utilitarianism concerned to secure equal concern and respect for all. (One of us (Fleming) develops this interpretation of Ely in Securing Constitutional Democracy: The Case of Autonomy.) But we do not ultimately justify substantive liberties along with procedural liberties as grounded in, as Tsai put it, “deliberation, virtue, responsibility.” Like Rawls, we ground such liberties in a conception of citizens as free and equal and as having two moral powers, which we formulate in relation to “deliberative democracy” and “deliberative autonomy.”

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