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Ordered Liberty

Ordered Liberty: Rights, Responsibilities, and Virtues

James E. Fleming
Linda C. McClain
Copyright Date: 2013
Published by: Harvard University Press
Pages: 334
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  • Book Info
    Ordered Liberty
    Book Description:

    Fleming and McClain defend a civic liberalism that takes seriously not just rights but responsibilities and virtues. Issues taken up include same-sex marriage, reproductive freedom, regulation of civil society and the family, education of children, and clashes between First Amendment freedoms of association and religion and antidiscrimination law.

    eISBN: 978-0-674-06745-5
    Subjects: Law, Philosophy

Table of Contents

  1. Front Matter
    (pp. [i]-[viii])
  2. Table of Contents
    (pp. [ix]-[xii])
  3. CHAPTER ONE Rights, Responsibilities, and Virtues
    (pp. 1-17)

    In recent years, communitarian, civic republican, and progressive thinkers and politicians have argued that our constitutional system takes individual rights too seriously, to the neglect of responsibilities, virtues, and the common good. “No rights without responsibilities,” a slogan of Third Way thought, encapsulates this perceived imbalance.¹ Similarly, President Barack Obama in his inaugural address called for a “new era of responsibility.”² Liberal theories of rights, critics argue, exalt rights over responsibilities, licensing irresponsible conduct and spawning frivolous assertions of rights at the expense of encouraging personal responsibility and responsibility to community. These theories, critics say, require neutrality among competing conceptions...

  4. CHAPTER TWO Rights and Irresponsibility
    (pp. 18-49)

    It is a common refrain: Americans focus excessively on rights, to the detriment of responsibilities. Reflection on the relationship between rights and responsibilities goes deeper than diagnosis of current moral, legal, and social problems. It extends to analysis of the very design of our constitutional system. For example, during the 1991 bicentennial of the ratification of the Bill of Rights, Harper’s asked a group of scholars and political figures to “carry on the founders’ conversation.” They pondered whether a “Bill of Duties” should complement the Bill of Rights, taking as their point of departure the claim that although “the vocabulary...

  5. CHAPTER THREE Taking Responsibilities as well as Rights Seriously
    (pp. 50-80)

    No constitutional right draws the irresponsibility critique more frequently than that of a woman to decide whether to terminate her pregnancy. Critics challenge the immunity it provides: a pregnant woman, on this view, should not be insulated from public persuasion against abortion, whether through informed consent laws requiring mandatory ultrasound, counseling at a “pregnancy help center,” or statements by her physician about her right to a relationship with her “unborn child.” Abortion also illustrates the wrongness prong of the irresponsibility critique: the right to choose abortion is a right to do wrong, permitting women to commit an immoral, irresponsible act....

  6. CHAPTER FOUR Civil Society’s Role in Cultivating the “Seedbeds of Virtue”
    (pp. 81-111)

    In Chapters 4, 5, and 6, we turn to the neutrality critique. A common critique of liberal theories of rights is that, because they require “neutrality” by government among competing conceptions of the good life, they bar government from cultivating the civic virtue upon which a stable political order depends. Morever, this liberal neutrality, coupled with rights talk’s preoccupation with the dyad of the rights-bearing individual versus the state, leads to the neglect of civil society—the realm of intermediate organizations between the individual and the state (including the family, religious institutions, and civic and other voluntary associations) that generate...

  7. CHAPTER FIVE Government’s Role in Promoting Civic Virtues
    (pp. 112-145)

    We now turn from civil society’s role in cultivating “seedbeds of virtue” to government’s role in a formative project of promoting civic virtues, focusing on the shared authority of parents and government in fostering capacities for democratic and personal self-government. We take up the relationships among toleration, autonomy, and this governmental formative project. Discontent with liberal toleration often goes hand in hand with attraction to perfectionist conceptions of the responsibility of government to undertake a formative project of shaping or steering citizens pursuant to a vision of human virtue, goods, or excellence.

    Liberal toleration elicits discontent both for being too...

  8. CHAPTER SIX Conflicts between Liberty and Equality
    (pp. 146-176)

    As shown in Chapters 4 and 5, there is a basic tension in the U.S. constitutional order between two important ideas about the relationship between civil society and government: families, religious institutions, and the many voluntary associations of civil society are foundational sources or “seedbeds” of virtues and values that undergird constitutional democracy, and yet these same institutions are independent locations of power and authority that guard against governmental orthodoxy by generating their own distinctive virtues and values. The first idea envisions a comfortable congruence between norms fostered by nongovernmental associations and those inculcated by government.

    What happens, however, when...

  9. CHAPTER SEVEN Autonomy versus Moral Goods
    (pp. 177-206)

    In Chapters 7 and 8, we take up two diametrically opposed republican challenges—perfectionism and minimalism—to liberal justifications of constitutional rights of the sort John Rawls, Ronald Dworkin, and we propound. On the one hand, to be discussed in this chapter, Michael Sandel charges that such theories are too thin: they represent a “minimalist liberalism” and an impoverished vision of freedom and justice that exalts choice without regard for the moral good of what is chosen.¹ He exhorts us to embrace a robust civic republican perfectionist conception of freedom and justice. Sandel argues that in interpreting constitutional rights like...

  10. CHAPTER EIGHT Minimalism versus Perfectionism
    (pp. 207-236)

    Unlike Michael Sandel, who has put forward a perfectionist critique of liberal theories like ours for being minimalist, Cass R. Sunstein has developed a minimalist critique of liberal theories like ours for being perfectionist.¹ He calls for courts to avoid perfectionist moral arguments about the good as well as liberal autonomy arguments about the right in justifying constitutional rights. Indeed, Sunstein recommends that courts eschew arguments about abstract moral principles generally. On his view, it cheats deliberative democracy when courts, conceiving themselves to be “the forum of principle” or a forum of justice, grandly theorize about rights and moral goods...

  11. CHAPTER NINE The Myth of Strict Scrutiny for Fundamental Rights
    (pp. 237-272)

    In this chapter, we conclude by addressing the absoluteness critique previewed in Chapters 2 and 6: that liberal theories that, in Ronald Dworkin’s terms,¹ “take rights seriously” treat fundamental rights as “trumps” or absolute exemptions from governmental pursuit of goods. We assess this critique in the context of the Supreme Court’s protection of basic liberties under the Due Process Clause. We show that the absoluteness critique is misplaced as against the cases and our constitutional liberalism, which protect such basic liberties stringently but not absolutely.

    The Equal Protection and Due Process Clauses are said to protect “fundamental rights” that trigger...

  12. Epilogue: Pursuing Ordered Liberty
    (pp. 273-274)

    In considering communitarian, civic republican, and progressive arguments that our constitutional system takes individual rights too seriously, to the neglect of responsibilities, virtues, and the common good, we have responded to the charges of irresponsibility, neutrality, wrongness, and absoluteness. We have countered claims that liberalism promotes “liberty as license” through developing a constitutional liberalism that aspires to pursue “ordered liberty”—“to secure conditions favorable to the pursuit of happiness”¹—by taking rights, responsibilities, and virtues seriously. Our constitutional liberalism, a synthesis of liberalism, civic republicanism, and feminism, does so through a formative project of government and civil society encouraging responsibility...

  13. Notes
    (pp. 275-344)
  14. Acknowledgments
    (pp. 345-348)
  15. Index
    (pp. 349-371)