Author: Robin West


Coercion and Persuasion and Speech: A Comment on Corey Brettschneider’s book, When the State Speaks, What Should it Say?

Corey Brettschneider’s book When the State Speaks confronts a core dilemma for liberalism and indeed for liberal states: how to respond to the existence of hateful speech, utterances, practices and the groups that sponsor them and promote them, in a way that checks the damage the hateful speech does to underlying liberal principles of free and equal citizenship, while at the same time respecting the rights as well as the free and equal citizenship of the speaker.  Corey rejects both of what he considers to be the two polar responses that pervade state responses, both here and elsewhere: the civil libertarian (or “neutralist”) claim that private speech is just that – private – and therefore of no concern or relevance to public values, public deliberation or public law, and that accordingly the state and larger community simply has no interest in it and should refrain from sanctioning or criminalizing it in any way, on one hand, and on the other, that of the “militant egalitarian” or some feminists, who argue that private hateful speech has very harmful and fully intended consequences and should be banned or censored in some meaningful way to stop its noxious spread.  Corey suggests that both these views veer toward one or the other of two dystopian visions of the relation of the state to its citizens: the “militant egalitarian’s” view, which urges greater criminalization of hate speech,  risks what he calls the “Invasive State,” meaning a state overly involved in our private lives, the traditional bogeyman of civil libertarians everywhere, while the liberal or neutralist view, according to which the state is and should be fundamentally unconcerned with the content of private speech, no matter how hateful or indeed how consequentially harmful, risks what he calls the “hateful Society,” a dystopia in which all rights and liberties are vigorously protected, but hate runs like an open sewer, undercutting the reasons we have rights in the first place, and with the consequence that some groups of citizens – women, racial minorities, gay and lesbian citizens – are frequently and even routinely subjected to hateful practices and utterances, including within the privatized nuclear family, and are left utterly unequipped for free and equal citizenship.   The question he raises and tries to answer in the book is how we can avoid both the Hateful Society, in which rights are protected but hate reigns supreme in the private sector, with inequality rampant and a lesser regard for the equality of us all as its clear result, and the Invasive State, in which hate is checked, but the state is a far too intrusive, and our private lives over-regulated?

Corey’s provocative and hopeful suggestion is to introduce a third possibility, fully captured by his provocative introduction of the “Persuasive State.”  The persuasive state refrains from coercion, and thus avoids the pitfall of the invasive state, but on the other hand does not deny the relevance to public values of privately held and promulgated hateful beliefs, including those promulgated within the family.  The State’s response to the holders of those beliefs, Corey believes, should be to seek to persuade those citizens to transform, modify or drop their hateful beliefs, to whatever extent those beliefs conflict with public democratic values, notably, values of free and equal citizenship.  The state should in effect counter hateful speech with argument – argument that those beliefs undercut the very values of free and equal citizenship that undergird the rights enjoyed by the holders of those beliefs themselves.  Perhaps those with hateful views will be persuaded, and will drop the views.  But even if not, other citizens will hear the dialogue, with the result being that the state will have been respectful of the equal rights of all, and will not have been complicit in the spread of beliefs that fundamentally undercut democracy.

I’m largely sympathetic to this project.  I think it is entirely right for us to recognize the relevance of private hateful beliefs to public values such as equality and freedom, equal respect and due regard, and that it is entirely right as well for us to shift our focus, somewhat, from our worries over the overuse of state’s coercive role to the possible good it can do when it acts in its persuasive capacity.  The state does after all speak constantly.  It is almost never quiet.  It speaks when it passes laws, it speaks when it justifies them in judicial decisions, it speaks when it promulgates administrative regulations and when it adjudicates those regulations, it speaks when it imposes sanctions in civil cases, and it speaks when it imprisons and fines and executes people.  It can use its rhetorical powers and force to promote liberal values of equality and freedom, and it can promote equal respect, due regard, and human dignity when it does so.  It already does this, obviously, but there’s no reason on earth that it shouldn’t be urged to do so more, and to do so more reflectively and effectively.  And, there’s no reason it shouldn’t do so in the specific context of hate speech and pornography. This is what I take Corey to be doing, and I support the effort.  I will raise just a few questions regarding the overall project which might suggest friendly amendments. Read More


Sovereign Citizens and Civic Responsibility

Jim and Linda’s wonderful book is a generous reinterpretation of the major cases of the U.S. liberal constitutional canon, with the aim of underscoring their fit with a reconstituted liberalism that embraces some measure of communitarianism and feminism, and distinctively requires – and nurtures — a healthy dollop of responsibility from its citizens as well as grants them rights.   Any number of Supreme Court authored constitutional cases, they argue, that have traditionally been held up to criticism for the ways they create a virtue-free zone of insularity around the exercise of rights, do not in fact do so, and to the contrary, can and should instead be read, as in some ways bolstering rather than destroying civic virtue.  Rights to procure abortions, for example,  particularly as expounded in Casey, don’t simply grant rights to do bad things, they also promote responsible decision making around issues of life and family.  Parental rights to educate one’s children as one sees fit, carries in tow the responsibility for attending to their civic education, and all toward the end of ensuring the children can themselves mature into responsible citizens – and those parental rights, therefore, must as a consequence be shared by the state, which must have the power as well as duty to provide a public education for all.  Virtually all such liberal rights, they argue, including modern rights such as the right to marry regardless of sexual orientation, rights to be free of family violence, rights to worship and associate as one wishes, as well as rights to be free of discrimination or abuse by some of those same associative private actors or groups, should all be understood as conferring not only a right, but also a space within which civic responsibility will be nurtured or allowed full force.  Conflicts between rights so understood should be resolved in ways that honor their dual function of nurturing or grounding responsibility, as well as insulating behavior in virtue free zones of rights.  Rights not only do not conflict with the responsibility at the heart of citizenship, they generally either presuppose it or exist so as to nurture it or allow it to flourish, among other ends. Read More


Natural Law, Human nature, duties to obey the law

I hope everyone is safe and warm and happy to stay wherever you are. I have just a couple thoughts on a couple of the posts to share.

Mark Murphy suggests that a milder or softer version of the natural law thesis is not subject to the ambiguity i argue afflicts stronger versions. The ambiguity I identify and discuss in the book is this: the claim that an unjust law is not a law can mean that unjust positive laws are not truly Law, or it can mean that anything the sovereign passes, so to speak, is not only law, but also, by virtue of that, it is just as well. The sovereign commands both the content of the law and of justice. The first interpretation lends itself to MLKing or Gandhian styled civil disobedience or even revolution; it allows the dissenter to claim the mantle of Law-abiding while disobeying particular unjust laws or legal regimes. The second interpretation allows the state to claim the mantle of justice as well as law, as it governs. This is a restatement of the same ambiguity Bentham noted, in his words, natural law lends itself to either anarchy or reactionary politics.

Mark dismisses Bentham as a credible commentator on natural law,, and then suggests that there may be exemplars of the reactionary interpretation of the strong natural law thesis, citing Hobbes. He then though suggests that the softer interpretation of the natural law thesis, that there are moral criteria for the enactment or identification of law, does not lend itself to reactionary or unduly conservative interpretations. Natural law, so to speak, is always the friend of the critic or disobedient, never the handmaiden of the sovereign, the powers that be, the status quo, etc.

I’m not sure. It seems to me that contemporary natural lawyers, and particularly John Finnis, spend an inordinate amount of time justifying the existence of a Duty to Obey the Law. Positivism is now more routinely identified with (and rightly) skepticism toward the existence of such a duty, and Natural law identified with the opposite: with the existence of a robust duty to obey the law. This is, to my mind, simply the softer version of the ambiguity Bentham first identified. Its also the flip of the associations with each tradition in the legal academy and to some degree in the general culture, or at least academic culture. We think of natural law as the jurisprudence of ML King and Gandhi and other people of conscience, and legal positivism a the jurisprudence of Nixonian devotees of law and order. Cover did a lot to promote these associations….I think it is at least half wrong. Natural law is sometimes employed politically toward these ends. In academic writing, however, if not in political rhetoric, it is these days far more often pressed toward the end of understanding the virtues of law abidance, not disobedience. The law, according to neo-natural lawyers, has an internal moral structure sufficiently robust to imply a duty to obey it. The work for natural lawyers is simply to identify what that structure might be. It is legal positivists, these days, Raz most prominently, simply denying the existence of any such duty. We might of course have duties to obey rules that are themselves good rules for reasons other than their identity as law — they may be concurrent with moral rules, or they may lay out sensible schemes of cooperation. But the duty to follow them, if it exists, exists for those reasons, not by virtue of their legal stature.
To my mind the positivist has the better of the argument, but all i want to suggest here is that natural law, today, is far more identified with the position that there exists a duty to obey the law, which is itself an echo of the what i called the conservative interpretation of the natural lawyer’s claim that law is definitionally, simply by virtue of being law, therefore also just.

It seems to me that Aquinas clearly did not intend this interpretaion, but rather, the critical interpretation, that there is no moral obligation to obey an unjust law.

Peter suggests an additional reason to be skeptical of the possibility of invigorating a progressive natural law: that there is no support, at least in Aquinas for an interpretation of the natural law tradition that isn’t reliant upon religious commitments. It seems to me the strength of Aquinas’s contribution in Summa Thelogica is the insight that reason gives us a window to god’s law, and that at the heart of god’s law is basically a commitment to human happiness. REason then should give us a guide to human happiness….

Mark Spindelman rehearses the reasons to worry of any claim, progressive or otherwise, that invokes human nature to justify much of anything, not only because such claims are as often as not incoherent, but also because they are more often than not retrogressive. I find that Marc’s own work constitutes a pretty clear counterexample. Marc has argued in a number of articles that liberal and postmodern positions on sexual liberty threaten sexual safety and integrity. These arguments generally, i believe, (like some similar claims i’ve made) depend on a conception, whether stated or not of human nature, and more clearly, on the claim that once was straightforward enough that people create texts rather than texts creating people. It is the latter commitment that gives him the latitude to argue against so many texts so convincingly — against the texts, on the basis of solidarity with the people.
So much else, I simply agree with, including, Deborah, your commitment to the thin constitution, although as you noted, our reasons are very different. Thank you so much for your thoughtful comments! Many thanks to Kathy Baker for her wise reflections on sex and marriage, and more pointedly for her exhortation to progressives to attend the case for civil marriage — and Kathy, i have heard my friend and colleague Jana Singer at Maryland make the same claim repeatedly, she might have written on this. Thanks as well to Meredith and Michelle for furthering the purely jurisprudential arguments of the first two chapters, Amy Uelman and John Mikhail for spelling out implications, and very different implications, for natural law views that are not dissimilar to my own,  Chai and Heidi for highlighting implications and contributing complexities of an array of claims,  Mary Ann for an incredibly powerful example of some of the arguments in chapter three, and a whole hearted thanks to Anita Allen for her insightful analysis of the relation between CLS and CRT, a topic i touched on but nowhere near adequately, and for her personal recollections of the genesis of both movements.
I very much enjoyed writing the book, and I’ve enjoyed this exchange hugely. I wish i could have found time to reply to everyone individually, but some will have to wait for personal conversations. The storm has taken over everything. Danielle, you are absolutely amazing, thanks again to everyone at Concurring Opinions that made this possible. I deeply appreciate it.


Genderless Marriages, Neutral Constitutions, Bloodless Persons and the Unbearable Lightness of the Good

A few thoughts on Kathy Baker and Deborah Hellman’s colloquoy:

Obviously, no matter how much we might wish it to be, civil marriage, whether its called marriage or union, cannot be both gendered and genderless; if respect for persons or pluralism counsels that the state should be neutral on that question, then genderless has won out.  Anyone who believes that marriage is by definition a relationship that is centered on “heterosexual intercourse between a man and a woman of the reproductive kind,” as Robert George and John Finnis and many others somewhat awkwardly claim and vehemently  believe, will certainly not have their understanding of marriage validated, or respected, by such a neutral state.  A neutral state is non-neutral by virtue of its “leave-it-to-the-individual”-neutrality, wherever such definitional clarity is required.

How to square the circle?  As a number of social conservatives as well as a good many progressives have sensibly concluded, perhaps the reasonable solution to this non-neutral neutral conundrum is for the state to remove itself from the business of sanctioning marriages.  Marriage, then, would   be a religious or secular institution, depending on the desires of hte participants, but either way it would be privatized, and then the state can go back to its primary business of enforcing contracts, including contracts between consenting adults for various intimate and not so intimate matters.  Then the state would be neutral with no disabling paradoxes, and marriage could be whatever religious traditions or secular humanists wish it to be.

The problem with this happily neutral solution, as Kathy rightly notes, is that marriage is more than a relationship and more than heterosexual intercourse of the reproductive sort.  It is also a semi privatized social welfare net: married partners are less likely to fall into poverty when calamity hits.  They have access to their spouse’s social security payments, military benefits, pensions, and of course health insurance.  We don’t have a robust public welfare net, so that semi privatized one does matter, and a great deal.  But, if that’s all that civil marriage is — a semi-private semi-public safety net — then there’s obviously no reason to limit it to opposite couples, simple fairness requires that we expand it to same sex as well, as the marriage equality advocates tirelessly point out.  The problem with that happy solution, of course, is that if we so expand it, it should become obvious that there’s no reason to limit it to “sex”‘-ed relationships either, whether same sex or opposite sex or both… why not the same benefits, the same safety net, for the grown woman caring for her elderly parents, or the two siblings for each other?  After all, what’s sex got to do with it?  Nothing, really.  And if we expand it to these non sex-ed relationships as well, then why limit it to relationships at all, why not simply pair everyone as they enter adulthood randomly by social security number with some other partner, if they haven’t managed to partner themselves off, either erotically or emotionally, so that everyone will have the benefit of someone else’s insurance policy or retirement benefits?

To stop this slope, as Kathy says, there does indeed have to be something worth saying, about relationships — if one wants to stop the slide at relationships.  Perhaps we should extend these benefits to people in relationships, rather than through a random buddy system, if there’s something good about relationships.  That requires, presumably, some sort of view about what’s good for people — put differently, some view about the nature of the good.

To Deborah — its so good to hear your voice! — should the Constitution be read as based on a conception of hte good?  I’d like first to distinguish two different quesitons, or views: one is the claim, made by Dworkin and Ackerman back in the seventies, and by many since then, that liberalism requires state neutrality toward conceptions of the good, from the quite different contention that the Constitution does not itself presuppose a conception of the good.  ITs easy to conflate these two, but we shouldn’t.  The liberal claim seems to me dubious, both with respect to liberalism itself — historically liberalism has been committed to pretty well developed conceptions of the good, the claimed centrality of state neutrality is a relatively modern intra-liberal invention —  but also on the merits, so to speak: it is also simply an unappealing political philosophy.  Too much state neutrality toward conceptions of the good tends toward corporate personhood, existential threats to big bird and NPR, inadequate support for public education, an inability or studied refusal to articulate compelling arguments for health care, sex education, in terms of the qualities of people’s lives, and so on.  As I argue in my book, one other cost of contemporary liberalism’s commitment to this dubious premise is that partly as a consequnece,  we don’t have a progressive natural law: liberals disdain the entire tradition, in part, because of their antipathy toward conceptions of the good, and antipathy toward the notion that the state should entertain them.   So the part of the natural law that I believe is of most interest — the part inspired by Aquinas and most developed by Finnis and his students, that explores the content of the Common good and the role of the state, and of law, in realizing it — suffers from a lack of participation by those who ought to be most engaged.

But whether or not the Constitution should rest on some such conception is another question, and that’s Deborah’s question.    In liberal, constitutionalized discourse, where the Constitution plays an outsized role in political debate, political questions tend to become almost immeidately “constitutionalized,” and therefore “legalized” and therefore “judicialized”: the quesiton, for example, should the state outlaw abortion (or hate speech, or flag burning, or pornography, or interracial marriage) becomes, almost as soon as its uttered, would it be constitutional for the state to outlaw abortion (and so on).  That quesiton,because its a constitutional quesiton, becomes, immediately, a “legal” question in a culture such as this one where constitutions are presumed to be part of our positive law.  And because its a “legal” question, it becomes, almost immeidately, because of the role of courts in our system,a  judicial quesiton for the courts to answer.  So political discussion of the wisdom of outlawing abortion, hate speech, flag burning, pornography, and so on is put through what i call the legal question doctrine funnel: it all eventually becomes constitutional-legal questions, to be answered by Courts, primarily by reference to past authority.  This leaves questions of “the good” –both the goodness of abortion, flags and so on, and the goodness of criminalizing or not those actions, and the goodness of having the liberty to ake the decisions oneself, and the goodness of democratic resolutions of those quesitons — off the table.  A thick constitution, unlike a thin one, takes more and more under its wing so to speak.  So as our constitutional discourse expands, our political discourse, and particularly political discourse about the good, is to that degree impoverished.  So,  for that reason alone, which is quite different from Deborah’s, I believe that a thin Constitution like the one Deborah defends is appealing, on grounds, simply, that the thinner the Constitution, the less it does, and therefore the less it risks impoverishing   political (and legal) discourse regarding the nature of the good.  A thin Constitution might be the closest we get to a Constitution outside the courts.

But there’s a substantial downside to that trade-off, which is discussed in my first chapter, and that is the tendency of progressive or liberal constitutionalists, rigorously committed to both state neutrality as a tenet of liberalism and state neutrality as a tenet of constitutionalism,  to in effect and unknowingly simply cede the ground of goodness, and what it does and doesn’t require of states, to others not so skittish about such commitments.  Neutral constitutionalism tends toward decidedly libertarian and market based outcomes for now familiar reasons, one of which though is the willingness, indeed the eagerness, of libertarian and social conservative constitutionalists to build, unapologetically so to speak, on the insights of both libertarian and social conservatiev conceptions of the good.   Unlike liberal constitutionalists, they’re not so troubled by the idea of a Constitution committed to a conception of the good, so long as its the correct conception.  Those arguments, then, tend to  go unmatched, and win by default.  We don’t have a much developed understanding of the contribution of decent gun control laws to the goodness of secure, fear- ree living, in domestic homes or on the streets, that matches the developed understanding of the contribution of liberty to the goodness of an autonomous life, just as (and for some of the same reasons that) we don’t hae a fourteenth amendment argument for the necessity of gun control to the equal protection of the law, to match the argument for the Second Amendment so as to protect liberty.   We don’t have an argument for the necessity of health care to a good life, to match the argument for the necessity of individual liberty to make market choices regarding insurance purchases, just as, and for some of the same reasons, that we don’t have much of an argument for the necessity of health care (or education) to the privileges and immunities, or the substantive due process rights, or the general welfare, to match arguments for the necessity of individual liberty and state privilege over these decisions.   We don’t have an argument for the necessity of a decent social welfare net to the “General Welfare” or to the Common Good, to counter arguments for the centrality of state or individual sovereignty and the marginality of community to the Good Life that are so deeply embedded in libertarian arguments to the contrary. And so on.  So there’s an awful lot of ground being conceded, both in the literal courts and the various courts of public opinion, by virtue of liberal insistance on state neutrality toward questions of the good.

Whether the Constitution requires these more robust arguments about the nature of the good  is a hard question — the text itself might demand more of it than our liberal insistence to the contrary seems to suggest.  But even if Deborah is right that pluralism counsels a thin, goodless constitution, or if i’m right above that a goodless constitution might be desirable for other reasons, it should not shut down liberal-legal conservations regarding the nature of the good, the good life, and the relation of law  to both.  There are reasons to be worried, no doubt, when the state becomes the nanny state, taking on the responsibility of deciding on our behalf the size of our sodas, the composition of our families, the best configuration of gender roles, the tradeoffs we should be making between consumption and pollution, whether we should be buying guns or butter.  There are also reasons to be worried, though, when the state becomes so dissociated from the human good it exists to promote that it — that would be we — forget that humanity of citizens, the frailty, mortality and fragility of human life, the miseries of hunger and cold, the feel of pleasures, happiness, security that its policies can indeed promote or  frustrate.  More discussion of the Common Good, and the contribution of law and lawyers to it, would seem all the more essential, should we concede, which perhaps we should, the strength of the case for a constitutional diet.




Natural Law and the Affordable Care Act (ACA)

Hello everyone,

Thank you so much for the time and attention you’re bestowing on my book!   Here’s a quick reaction to Heidi and Brian.

For reasons I discuss in chapter one and won’t rehearse here, we’ve become accustomed to thinking of the Natural Law tradition as negative and censorial, much like (and for some of the same reasons) that we think of constitutional rights, and rights in general, as negative and trumping.  So a law that is unjust is not a Law, a law that doesn’t meet certain moral criteria is not a Law, something that appears to be a law, by virtue of pedigree or social facts, but is immoral or unjust in certain ways, is not true Law.  This has skewed our understanding of the historical Natural Law tradition and also, and more to the point here, our appreciation of what light that tradition might shed on some of our current arguments.  What’s been lost is that the natural law tradition also suggests affirmative or positive obligations on lawmakers to enact laws that promote the common good.   It suggests duties of lawmaking, in other words, as well as restraints on lawmaking power.  This has gotten lost in our received, “civil disobedience-ish” understanding of what natural law has to offer.  Let me illustrate quickly with the ACA.

How does the ACA fare, as viewed from a natural lawyer’s perspective?  Seems to me there are three possible insights.  If an unjust law is not a law, then perhaps, if the individual mandate is an unjust infringement of liberty, then it is not a law at all.  This is not an argument that’s been given any credence, but it is structurally parallel to the argument, taken very seriously, that the mandate is an unconstitutional infringement of various individual rights of liberty.  Second, perhaps the requirement that employers contract with insurers who will in turn cover the cost of birth control, conflicts with the mandates of individual conscience of some of those empoyers, and perhaps for that reason the law is unjust, so not a law at all.  Again, this argument hasn’t appeared in scholarship that i’m aware of, but it has obvious parallels to the claim that the birth control coverage in the ACA violates  RFRA, and is therefore unlawful.  There is a natural law gravitational pull, in other words, in the direction of viewing the law with an eye toward identifying infirmities that might render the law to be so unjust as to be not truly Law.

But what’s been lost is how the ACA serves the Common Good, and how it might, accordingly, be a law that captures the natural law affirmative obligation of lawmakers to legislate in a way that promotes it.  A healthy and long life, Martha Nussbaum, Amartya Sen, Henry Richardson, and others working generally in the “capabilities approach”, which is itself closely tied to Finnis’s Natural Law jurisprudence, is clearly a part of the individual good of virtually all of us, whether we call it a “capability,” a “function,” or simply a good.  A state that can promote that good so common to all of us by organizing health care resources in such a way as to make it realizable by all, is presumably acting in accordance with the Natural Lawyer’s mandate to promote the common good.

Libertarian political philosophy plays a major role in the development of libertarian constitutional theory, just as social conservatism plays a role in the development of conservative constitutionalism.  Liberal political theory has contributed to liberal constitutionalism as well,but primarily by laying the foundation for the value of state neutrality toward the good.  LIberal constitutionalists have not turned to natural law, and particular its central claim that the lawmaker should promote the Common Good, as a font or guide to the development of a liberal constitutionalism of legislative and administrative duties to promote the General Welfare,  or provide equal protection of the law, protect privileges and immunities, promote liberty and happiness, and so on.  It seems to me that’s a shame.

So, Heidi is right that the common good is thick, and likewise our legal institutions.  Traffic laws do provide an example of a set of rules that serve the common good through mandating and facilitating cooperation.  The ACA, once fully operating, will serve that good, and will use multiple legal institutions to do so.

Brian and others worry about the qualifications of law professors to opine on the relation between jurisprudential commitments, normative judgments, and positive law.  I understand the worry, but we invoke it so selectively!  We opine on “public policy.”  We make claims of what is and what isn’t a “cost” or “benefit” for purposes of CBA.  We opine obviously on the unconstitutionality of law, often if not typically by reference to background moral principles.   Why shouldn’t there be a more robust discussion, from the legal academy, on the content, contours, and limits of the Common Good that the law, and the lawmaker, ought serve?