Category: Symposium (Ordered Liberty)


Ordered Liberty: Further Reflections

James E. Fleming & Linda C. McClain

We have benefitted enormously from the rich and fruitful exchange in the Concurring Opinions symposium on our book, Ordered Liberty: Rights, Responsibilities, and Virtues. We appreciate all the thoughtful posts, which have provided wonderful opportunities for further reflections and for refinements and clarifications of our arguments. We fully expect to continue the dialogue with many of the participants and to develop our arguments further in future work.

Thanks especially to Danielle Keats Citron for facilitating the exchange and to Frank Lancaster for technical support.


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. Read More


“Mutual Adjustment” of Conflicts between Liberty and Equality versus Winning It All: Response to Rick Garnett

James E. Fleming & Linda C. McClain

We appreciate Rick Garnett’s kind words about our book, Ordered Liberty, especially since he probably disagrees with us more than any of the other participants in this symposium. He expresses the worry that what we call “mutual adjustment” of conflicts between liberty and equality–especially in the clash between freedom of religion and securing equality for gays and lesbians–is merely prudential delay of “congruence” between liberal virtues and values inculcated by government and those inculcated in civil society, including by conservative religious associations and religious families.

In situations involving clashes of rights, or more precisely, clashes of higher order values underlying rights, we do not simply argue, contrary to Garnett’s position, that the liberal side wins. Nor do we say, as he evidently would, that the conservative side wins. We suggest that one way to resolve or at least mitigate the clash is to secure the status of equal citizenship for gays and lesbians while also granting exemptions on grounds of religion. Each side gives up something through the mutual adjustment rather than one side or the other winning it all. Read More


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. Read More


Civic Education and Teaching at Home

I’m delighted to have been invited to be a guest on this forum. I thank Danielle for the invitation and the blog’s other authors for their hospitality.

I thought I’d begin by chiming in on the recent exchange over Jim Fleming and Linda McClain’s proposal to require homeschooled students to participate in civics education within public schools. The ur-text here, of course, is Justice McReynolds’ claim for the Court in Pierce v Society of Sisters that “The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only.” McReynolds identifies the central issue as the choice of who does the  teaching, rather than what is taught. Following his lead, I can easily accept Catherine Ross’s proposal to set civics curricula that all, including homeschoolers, much teach; but I reject that  teachers must be state agents. Abolishing families’ right to opt out of public instruction is too close to the state’s ideological conscription of its children.

Pierce is in bad odor in some circles. Dean Chemerinsky, for example, recently reiterated his long-held position that it should be abandoned in service of educational equity. Also, as both a doctrinal and theoretical matter, one need not apply Pierce to home schoolers. Private schooling, unlike  home schooling, at least guarantees children access to adults and adult ideas from some source other than their parents.

But I stand up for Pierce‘s claim that the choice of teachers is fundamental to liberty. And this does extend to homeschoolers. Indeed, it’s precisely for a reason suggested by Catherine that I recoil at forcing homeschooled students into public schools: Civic education is accomplished at least as much by modeling for children what liberty, citizenship, and republicanism are as by telling them what they are. Coercing all children to attend to agents of the state, who will explain to them what it means to be a citizen, models for children a grossly illiberal civic orthodoxy. That lesson will be learned even if the content of those agents’ civics lessons are liberal, pluralist, and tolerant.


Do Civic Virtue and Responsibility Go Beyond Political Liberalism?

Thanks to James Fleming and Linda McClain for their response to my post. The exchange has helped to elucidate the many fine points of their book. I appreciate too the various ways in which our projects overlap and thank them for continuing to bring them out.

I certainly agree that Fleming and McClain endorse a political liberal ideal of free and equal citizenship and that they often rely on an analysis that invokes this ideal in analyzing cases. They want to support free and equal citizenship. The most crucial concern, however, from my post is that the promotion of virtue may go beyond supporting the political liberal values of free and equal citizenship. Do Fleming and McClain mean to define virtue in that is merely synonymous with the political liberal ideal of free and equal citizenship, or is the concept of virtue distinct? Although they say that “we will not attempt here to persuade him about why it is possible to promote civic virtue without sliding into promoting moral virtues simpliciter and comprehensive visions of the good life,” I think this is the central challenge for their book, in that the issue of promoting virtue highlights one of their unique and important contributions to political theory. Read More


On Civic Education, Critical Thinking, and Civic Empowerment: A Response to Catherine Ross

James E. Fleming & Linda C. McClain

We greatly appreciate Catherine Ross’s gracious, thoughtful, and supportive intervention into the conversation between Kent Greenfield and us concerning civic education and what he (not we) called “mandatory patriotism.” She nicely encapsulates our position (as well as hers) and makes cogent criticisms of his view that we would adopt. She is right that we contemplate critical thinking when it comes to the Pledge of Allegiance and Constitution Day just as we do in civic education more generally: that we articulate “a framework that incorporates critical thinking with mindful patriotism in which thinking students can challenge the ideas presented and hold authority figures to the ideals they tout – even where the flag or Constitution ‘is our own.’”

We would like to respond to Ross’s observation concerning our proposal that government should require that homeschooled children should “come into the public schools to learn civics.” In our book, we state: “all children, including homeschooled children, should participate in civic learning in schools.” (144). Ross applauds our proposal “in principle,” but counters that “the real civics lessons in schools are not communicated through formal classes” (although she thinks schools should offer them), “but in the lessons learned by doing and acting – exercising speech rights, debating, and receiving adult guidance about resolving conflicts when schools make the best use of ‘teachable moments.’” While we would not draw such a sharp distinction between classroom learning and “doing and acting,” we agree with Ross about the importance of the entire school environment. Indeed, this is a basic point made in the consensus document that we discuss in Chapter 5 of our book, “The Civic Mission of Schools” (Carnegie Corporation of New York and CIRCLE, 2003). That report states: “in addition to civic education programs, school environments and culture are critical to whether and to what extent young people gain civic skills and attitudes.” Thus, the “most effective programs” are in schools that “infuse a civic mission throughout the curriculum; offer an array of extracurricular activities; and structure the school environment and climate so that students are able to ‘live what they learn’ about civic engagement and democracy.” (“The Civic Mission,”  21). We completely embrace this notion of a civic mission “infusing” schools. However, we made our proposal about homeschooled children coming to school for civic learning in our sketch of how constitutional liberalism would seek to “reconcile the dual authority of parents and children to educate children.” (Ordered Liberty, 139)

In her instructive work on the vital importance of teaching tolerance, Ross has proposed that such teaching could take place in the home but with “materials on tolerance provided by the schools.” We rejected a similar proposal with respect to civic education. One reason was the possibility that homeschooling parents who disagreed with the substantive messages of the curriculum might undermine them. In addition, we expressed concern that: “Even if parents willingly conduct such lessons, homeschooled children will lack the opportunity to hone skills of critical thinking through studying civics in the context of a classroom and, together with other students, working out how ideals and principles apply to particular contemporary problems.” (144) In effect, our reason for requiring children to spend some time in school is so they will have a chance to participate in (as Ross puts it) “lessons learned by doing and acting.”

In closing, we would bring up an aspect of civic education not yet mentioned in this online symposium. Schools, through civic education, can play a role in addressing – as “The Civic Mission of Schools” puts it – the “exceptionally large” gap in the United States between the best- and worst-prepared students in terms of their civic and political knowledge.  Schools can address “troubling inequalities in civic and political engagement,” (14) or what Meira Levinson calls, in her book, No Citizen Left Behind (2012), the “civic empowerment gap” between more advantaged and less advantaged children (based on wealth, race, and whether or not they are native-born or nonnnative-born). In their work on civic education, civic liberals – and other proponents of civic education – should be mindful of this inequality and of the potential for schools to address it.


Civic Liberalism’s Conception of Patriotism includes Critical Thinking: Response to Maxine Eichner

James E. Fleming & Linda C. McClain

We thank Maxine Eichner for her thoughtful posts concerning Constitution Day, the Pledge of Allegiance, and our book, Ordered Liberty. Before offering some concluding thoughts about our disagreement with her about the Pledge, we want to bring out how close her conception of civic education and of civic virtues in her book, The Supportive State, is to ours. We agree entirely with the content of the “program” she sketches in her post of “what commitments” an “adequate but not excessive civic education” would “seek to foster.” We believe that this type of civic education is consistent with the best contemporary literature on civic education (which we draw upon in Chapter 5 of Ordered Liberty, “Government’s Role in Promoting Civic Virtues”).

Now for the Pledge: Eichner agrees with us in recognizing that observing Constitution Day does not coerce what Kent Greenfield called “mandatory patriotism,” but is fully compatible with encouraging what we called “critical thinking” about the Constitution. But she worries that recitations of the Pledge of Allegiance encourages “uncritical allegiance.” She then gives examples, including support for George W. Bush’s Iraq War and support for laws that “will disenfranchise massive numbers of citizens in the guise of protecting the state from voter fraud.” But the problem in these cases is not uncritical allegiance to our republic but the substance of the views that support these measures. For example, citizens who support “voter fraud” regulations are not saying, we support these laws because we uncritically accept what our leaders tell us; instead, they are saying (wrongly) that there is rampant voter fraud in this country enabling Democrats to steal elections and we have got to put a stop to it! We need to build critical thinking into our conceptions of patriotism and allegiance just as we need to do so into our observance of Constitution Day.

On September 11, 2001 and in the years following, we lived on the Upper West Side of Manhattan, a bastion of liberalism. Our then young daughters attended a public school that began every day with a recitation of the Pledge of Allegiance. That same school also had a curriculum that cultivated critical thinking and aimed at teaching tolerance and respect for difference. Further, one of us (McClain) was on the school’s Diversity Committee and recalls that the Committee’s film series for parents and children selected and showed films about prejudice toward and distrust and vilification of Muslim Americans in the United States in the wake of 9/11 and President George Bush’s “war on terror.” We recall that some Upper West Side liberals criticized the recitation of the Pledge precisely on the ground that Eichner does in her post. One of us (Fleming) vividly recalls having a “Michael Sandel” moment concerning liberals and patriotism: thinking, there they go again, playing right into the conservative arguments that liberals are unpatriotic, that they hate America, that they “blame America first,” and all the rest of it. Like Sandel, Fleming believes that civic liberals need to reclaim patriotism (with critical thinking and critical allegiance) from the conservatives along with civic education and the inculcation of civic virtue. The other of us (McClain) shares this belief, but also believes, in light of the concerns Eichner raises, that it would inform the debate over the Pledge to learn more about the actual impact – if any – it has on school children and on their understanding of patriotism.


Why the State Can – and Should – Promote Public Values as well as Civic Virtue: A Response to Corey Brettschneider

James E. Fleming & Linda C. McClain

We appreciate that Corey Brettschneider identifies with us as “kindred spirits in the project of developing a liberalism that is both rights protecting and also promotes liberal values.” We also appreciate that he views our book as offering a “powerful challenge” to a “neutralist view” of what a liberal democracy can do to promote its “central values” while also protecting “basic rights.” And we look forward to participating in the upcoming symposium on Concurring Opinions about his book, When the State Speaks, What Should It Say? We are concerned, however, to clear up his evident misunderstandings concerning our book. Thus, when he suggests that his own book has “distinctive features” that “might give us different resources in replying to critics” of the liberal project in which he believes we are “kindred spirits,” he seems to underestimate the resources our own book provides! Namely, he seems to conclude that we view the liberal state’s project as encouraging responsibility and promoting civic virtue, to the exclusion of promoting public values and free and equal citizenship. This is not correct: the fundamental substantive commitment of our Rawlsian constitutional liberalism is to secure the status of free and equal citizenship for all, even though, admittedly, our book’s subtitle is “Rights, Responsibilities, and Virtues.” Read More


Once More on the Pledge, Patriotism, and Ordered Liberty

I’ve continued to enjoy the discussion of Linda and Jim’s book, and particularly of the Constitution Day/mandatory patriotism issue. And as much as I liked the book, Jim, I’ve got to side with Kent on the pledge issue. I took it from your original set of comments that you would see schools encouraging students to say the pledge as permissible though not (to borrow Kent’s phrasing of the issue) a “Good Thing,” but you’ve now clarified that you’re pro-pledge. Although I have myself argued that a vigorous liberal democratic polity requires particular virtues in its citizens that the state should foster in public schools (and in fact argue this in chapter 5  here),  I think the pledge encourages exactly the kind of uncritical allegiance that threatens a vigorous liberal democracy, and is particularly harmful here in the U.S.

We have only recently extricated ourselves from the Iraq War, a war that we entered because the country far too credulously accepted the statements of its leaders, which caused considerable loss of life, as well as an outlay of trillions of U.S. dollars even though more than one-fifth of our children are in poverty. And as we speak, legislatures in state after state, without widespread citizen outcry, are passing regulations on voting that will disenfranchise massive numbers of citizens in the guise of protecting the state from voter fraud. Given these examples and more, it seems clear to me that our problem with respect to civic virtues is not that our citizens are not patriotic enough, but rather that their patriotism is too uncritical, too accepting of what their leaders tell them, and that it causes them to support government without measuring it against important liberal democratic ideals. Encouraging the pledge, in my view, is far more likely to make this situation worse not better.

Kent will, I’m sure, point out that my disagreement with Jim highlights the fact that what I’m calling civic liberalism and he calls civic republicanism, in promoting education for civic virtue, requires some determination of what virtues citizens need, and that this is a question to which there are no definitive answers. That’s certainly true, but this isn’t an adequate reason to reject purposeful civic education. As so many liberal theorists have come to recognize in recent years, any tenable liberal democracy requires some virtues in its citizens for it to function relatively well, and these virtues don’t develop simply by chance. Liberal neutrality is therefore not only impossible (liberalism, as the later John Rawls showed, necessarily embodies a set of non-neutral commitments, albeit limited ones), but the failure to aim higher for our young citizens leaves us with a status quo that also has significant costs, and which are imposed on particular groups. At a time in which higher percentages of US citizens believe that religious leaders should assume a strong political role than in other countries, and given that a number of these leaders advocate positions based on their religious philosophy that cannot be justified on grounds shared outside their religion, this is no academic debate. And at a time in which only nine of our states permit same-sex couples the right to marry, a denial which, it’s become abundantly clear, can’t be justified as a matter of public reason, the status quo imposes huge costs, as well, on particular groups of disfavored citizens.

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