State Speech and Political Liberalism
Greene, Abner S., Constitutional Commentary
ORDERED LIBERTY: RIGHTS, RESPONSIBILITIES, AND VIRTUES. James E. Fleming (1) and Linda C. McClain. (2) Cambridge, Mass.: Harvard University Press. 2013. Pp. 371. $49.95 (Cloth).
State regulation and state persuasion require different grounds of legitimacy. If we understand political liberalism to require, among other things, that the state "remain neutral toward disputed and controversial ideals of the good life," (4) this neutrality should focus on state regulation, not state persuasion. Perhaps the state's attempt to regulate based on common ground understandings (an overlapping consensus of reasonable comprehensive views of the good) (5) can help secure this kind of liberalism in politics. Even when it regulates in this fashion, however, the state should attend to the costs imposed on those who cannot share in the common ground understanding, or so I have argued previously. This is so even though the failure of neutrality is one of effect and not purpose. Establishment Clause limits regarding state religious speech aside (at least in our constitutional order), a proper understanding of political liberalism need not, though, hem the state in regarding its speech power, need not limit it to advancing common ground understandings or liberal conceptions of the good. My prior work has argued for a deep and wide pluralism in a liberal constitutional order--just as the state should accommodate those whose religious and other beliefs and practices cannot be part of the regulatory common ground, so should we see the "state" as many mini-states (federal, state, local), all competing for citizens' allegiance, and able to advance through speech (and conditional funding) a wide array of goals, shared and not-so-shared, liberal and not-so-liberal. Citizens as listeners and voters can then make up their own minds. I believe this deep and wide pluralism is an aspect of the best understanding of political liberalism--a presumptive accommodation of those whose practices are harmed by common ground regulation; state speech that may be on contested issues and may (with some possible limits) (7) advance views at odds with standard liberal virtues. We should see political liberalism as applying liberalism's open-mindedness, uncertainty, and humility to state action generally, acknowledging that viewpoints that reject these virtues help provide a check on laws that are otherwise liberal (in effect only, perhaps) and on state speech that would otherwise advance only standard liberal ends. This marriage of pluralism with political liberalism not only provides a checking function against the state; it also permits groups to develop apart from the state, an important aspect of diversity. Furthermore, it is the best way to apply an appropriate liberal sense of doubt about whether we've gotten the right or best answers.
Jim Fleming and Linda McClain have written an impressive book on the responsible exercise of rights, which flows from prior writing by each? Their title, "Ordered Liberty," is a bit of a misnomer, however. When one thinks of that phrase, one thinks of the ways in which we balance liberty against order, i.e., against security, police power, controlling the excesses of liberty. Responsibility in the exercise of rights is an aspect of how rights are orderly, but the major hard cases involving rights are hard because significant claims of harm are in play. Think of much of constitutional criminal procedure, free speech cases that are tough because speech causes serious harm, not because it does not, and abortion rights jurisprudence. Fleming and McClain have much to say about what it means to exercise rights responsibly, but little to say about the state's claims of order in the sense of preventing or redressing serious harm to others.
A core claim in the book is that encouraging the responsible exercise of rights is consistent with a proper understanding of liberalism. Liberalism is not, on this view, just about appreciating the ways in which the state may be checked and the liberties of individuals fleshed out. …