On the Responsibilities and Sovereignty of Citizens: Response to Robin West

James E. Fleming & Linda C. McClain

We greatly appreciate Robin West’s characteristically supportive and constructive yet challenging post concerning our book, Ordered Liberty: Rights, Responsibilities, and Virtues. We are deeply indebted to her for helping to set us down the path of working up a liberal constitutional theory that takes responsibilities and virtues as well as rights seriously. Her powerful “Foreword: Taking Freedom Seriously” in Harvard Law Review was a profound challenge to liberal theories that “take rights seriously” but seem to insulate right-holders from responsibilities. Indeed, that is one of the central problems we address in our book. Whereas some of the other commentators in this symposium have argued that our constitutional liberalism is too thick regarding encouraging responsibility or inculcating civic virtues, West says that it is too thin.

We characterize our constitutional liberalism as a “mild form of 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.

West quotes a passage encapsulating our constitutional liberal framework of basic liberties and remarks that “this is a very low bar” as far as responsibilities of citizens are concerned. “It doesn’t demand much of the citizen.” She suggests that we “don’t say as much as perhaps [we] should about the actual content of citizens’ responsibilities.” West characterizes her call for us to say more about citizens’ responsibilities as “a friendly amendment to the project.” We appreciate the friendliness, but we see her as calling for a very large supplement.

We should clarify that our constitutional liberalism’s framework of basic liberties does not aim to elaborate a full package of the “responsibilit]ies] that citizens bear, qua citizen.” Instead, we ask, does taking these rights seriously preclude government from encouraging responsibility in the exercise of rights (Chapters 2 and 3), preclude government and civil society from inculcating civic virtues to sustain democratic and political self-government (Chapters 4 & 5), prohibit government from justifying rights on the basis of moral goods or virtues fostered by protecting them (Chapters 7 and 8), and require the courts to protect such basic liberties absolutely, to the exclusion of government encouraging responsibility or encouraging civic virtues (Chapter 9). In sum, our book undertakes to answer the question to what extent does taking rights seriously preclude government from encouraging responsibility and inculcating civic virtues. We do not elaborate the full package of responsibilities that citizens owe each other.

To be sure, we do say that we conceive the Constitution not merely as a charter of negative liberties, protecting people from government, but also as a charter of positive benefits imposing affirmative obligations upon government to promote good things like the ends proclaimed in the Preamble to the Constitution. But we do not fully elaborate those ends, positive benefits, and affirmative obligations. That would be an extremely ambitious project. Sotirios Barber, sometime co-author of one of us (Fleming), has labored mightily on this terrain in his books, Welfare and the Constitution, The Fallacies of States’ Rights, and elsewhere, as has West herself in her work. We may at some point contribute to that project. We simply wish to be clear that our project in Ordered Liberty was different.

Our book’s theoretical architecture concerning basic liberties – grounded on a Rawlsian conception of citizens as having the capacities for what we called “deliberative democracy” and “deliberative autonomy” – evidently gave West the impression that the citizen, in our argument, “is always opposed to, or contrasted with, or in some other relation to, ‘the state’ or to ‘government’ or sometimes to ‘the community.’” But that is not our view. We accept, in principle, that citizens are the state, or that they constitute the state. West says, if citizens “share in sovereignty,” then “maybe we could call the citizen, the citizen-sovereign.” We meant to get at such an idea in our book. Indeed, within our constitutional liberalism, the preconditions for deliberative democracy and deliberative autonomy are preconditions for the sovereignty of free and equal citizens. In elaborating our idea of deliberative democracy or democratic self-government, we contemplated that “sovereign” citizens deliberate about the common good and the positive benefits to be pursued. Furthermore, in developing our idea of deliberative autonomy or personal self-government, we contemplated the “personal sovereignty” of citizens in making significant decisions.

But West means more than all of this by “citizen-sovereigns” or “sovereign-citizens.” She means that “citizen-sovereigns” have a responsibility “to support public institutions that in turn protect all citizens.” We have no quarrel here. She adds that citizen-sovereigns might also have a “duty to care.” Again, we agree in principle. One of us (McClain) has written extensively about care as a public value and a public responsibility – both in the book, The Place of Families: Fostering Capacity, Equality, and Responsibility, and elsewhere – and has fruitfully engaged with West’s own work on care, including her book, Caring for Justice.

All in all, we believe that we could embrace many of the things that West says are among the responsibilities of citizenship. Yet we want to issue three cautions. First, we worry that, as West portrays our project, our effort to pair rights and responsibilities may lend itself to assuming that in every instance we are proffering a model of the “responsible citizen” – so that every time the state protects rights or enacts a program to help persons, this comes with a set of “responsibilities.” That is not our view. For example, we would not want to be read to suggest that statutes protecting against domestic violence assume a “responsible” victim of domestic violence, or that one has a right only to worship in a responsible way.

Second, we are concerned about an ambiguity in West’s post that may be a typo or may be a clever flip: West changes from “citizen-sovereign” to “sovereign-citizen.” The latter formulation may unwittingly invite trouble. It may recall the sovereign-citizen of the bad old days who is king of his castle, head of his household, with wife, children, and servants within the home subject to his rule. We know that West emphatically rejects this idea of sovereignty. She has cogently argued about the duty to protect people from violence in these realms of personal sovereignty where power is exercised.

What is more, we fear the uses to which the image of sovereign-citizens might be put in today’s constitutional and political discourse. It may too readily connote a new version of the old king of one’s castle, with an unregulated and unrestricted right to bear arms, bolstered by “stand your ground” laws. It might be invoked to support a right to reject the federal government’s attempts to secure positive benefits for all as unconstitutional, even tyrannical exercises of power. In short, is the sovereign-citizen the Tea Party Patriot or the progressive committed to West’s full package of responsibilities?

For these reasons, we believe that instead of speaking of “citizen-sovereigns” or “sovereign-citizens,” it may be better just to elaborate the responsibilities we owe to one another in a scheme committed to securing ordered liberty and to pursuing positive benefits like the good things contemplated in the Preamble.

West is right to suggest that “an explicit recognition of the sovereign-citizen and the responsibilities such a citizen has by virtue of his or her sovereignty might sharpen the conflict between [our] soft perfectionism” and other forms of liberalism. Indeed it would. It might also take our constitutional liberalism beyond constitutional justice (as an account of the commitments of our constitutional order) to a full conception of political justice.

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