Some Realism about Constitutional Liberalism

Article excerpt

ORDERED LIBERTY: RIGHTS, RESPONSIBILITIES, AND VIRTUES. James E. Fleming (2) and Linda C. McClain. (3) Cambridge, Mass.: Harvard University Press. 2013. Pp. 371. $49.95 (Cloth).

I. INTRODUCTION

Presidential elections often are good barometers of the national mood, though their fullest implications are likely best read in hindsight rather than on the eve of the primaries. Nevertheless, a fair reading of the 2012 national mood, as of this pre-election day writing, is that the American people are divided between a vision of government as ally versus government as antagonist. On the partisan poles are those who may be described as strongly and consistently pro-government in their leanings, on the one end, and those who are strongly and consistently libertarian, on the other end. Although most Americans likely lie in between these statism poles, and selectively invoke the benefits or harms of government power, broad-strokes political rhetoric today increasingly rings libertarian bells. Anxiety about government efficacy, government wisdom, and government expanse has prompted conservatives and liberals alike to ask whether, and in what contexts, government assistance is a welcome means of assuring that individuals can fulfill their potential as well as assuring that the country can realize collective goals, versus an unwelcome, "nanny state" intrusion into individual freedoms.

In the scholarly version of these wider political debates, the discussion about the limits of government power over individual freedoms sometimes is couched in terms of communitarian versus liberal visions of government power, and how American constitutional law shapes each vision. Influential communitarian scholars for years have critiqued strong liberal theories of rights on the ground that they "exalt rights over responsibilities, licensing irresponsible conduct and spawning frivolous assertions of rights at the expense of encouraging personal responsibility and responsibility to community" (p. 1). In their view, limiting government power in the interest of preserving individual liberty has contributed to an erosion of the public good, and a weakening of civic virtue. Civil liberties and civil rights, as they have evolved since the 1960s, have imposed significant social costs that have mounted in ways that seriously compromise our collective well-being. According to these critics, "liberty as license"--that is, an approach to rights that takes them too absolutely--has been pursued instead of an "ordered liberty" that bows more deeply to the common good and that takes the responsibility part of the rights/responsibility balance more seriously (p. 1).

Central to this debate is how much, and in what contexts, government should be allowed to inculcate civic virtue. At what point does government intervention impermissibly erode individual and private associational autonomy? For example, is a federal command that all Americans do their part to assure affordable health insurance for all by purchasing insurance or suffering tax consequences an expression of "ordered liberty" or an undue invasion of liberty? Is a decision by a young and apparently healthy person to forgo purchase of health insurance irresponsible? A decision to undergo an early-term abortion? To enter into a same-sex relationship? Or, are all of these decisions ones that a liberal constitutional order properly must leave to the individual with little or no government restrictions?

How, if at all, do the classic communitarian arguments in favor of allowing government to inculcate civic virtue stack up against the realities of governance? Do growing concerns about government dysfunction, gridlock, corruption, and hyper-partisanship undermine of fortify the communitarian arguments against liberal rights where they conflict with a "common good"? Finally, are communitarians right to insist that the recognition of liberal rights in fact requires or encourages government (and others) to suspend critical judgment of the decisions in ways that obscure the costs of rights, the "wrongness" of behaviors that nevertheless receive legal protection, and their potential harm to others? …