Democracy's Discontent: America in Search of a Public Philosophy.

• Author: Tushnet, Mark V.

Michael Sandel's critique of the public philosophy of contemporary United States liberalism is almost enough to make me a liberal.(1) Sandel aims his criticisms at what he calls liberalism's procedural republic, but many miss their target. The procedural republic has more going for it than Sandel is willing to concede: A sensible and defensible liberal public philosophy covers nearly the whole terrain with which Sandel is concerned, and more. Sandel believes that he has described an alternative to such a philosophy, but much of what he recommends is entirely compatible with a sensible liberal public philosophy. Sometimes his prescriptions are so ill-defined that one might read into the project more than is there. Moreover, to the extent that some of his recommendations clearly differ from what a sensible liberal public philosophy would recommend, they are of questionable value. Nevertheless, the procedural republic is indeed inadequate. It lacks the resources, some of which Sandel identifies, to deal with one important source to contemporary discontent: the concentration of economic power in transnational corporations, which deprives United States citizens of important powers of self-governance.

After providing an introduction to Sandel's argument in Part I, I go on to raise three questions about some of its main components. Part II examines Sandel's effort to identify the public philosophy that reigns in the contemporary United States. Section II.A questions whether Sandel fairly educes such a public philosophy from legal sources, Section II.B suggests that Sandel's reading of United States history to discern our public philosophy oversimplifies that history's complex reality, and Section II.C argues that Sandel's criticisms of John Rawls's version of liberalism as a political philosophy are misplaced, but that Sandel's description of a public philosophy may nonetheless be accurate.

Part III stands back from the substantive details of Sandel's work and locates it socially. I argue that Democracy's Discontent offers us a version of what sociologist Charles Derber calls "the communitarianism of the professional middle class."(2) Democracy's Discontent's failure to offer an adequate account of how to achieve popular control of an economy characterized by transnational economic power coheres with the position of that class, which itself both hopes for such control and has few resources with which to achieve it. Part IV elaborates on an idea of federalism and local control that plays an important but vague role in Sandel's exposition. Section IV.A argues that federalism may provide an entry into developing an idea of complex cosmopolitanism as a public philosophy that might address the economic questions discussed in Part III, and Section IV.B applies that idea of complex cosmopolitanism to the issue of gay rights.

Democracy's Discontent is a rich and interesting work. It is particularly valuable in its emphasis on the way in which economic debates are not merely about economic growth and distributive justice but are also about the political conditions that flow from our economic arrangements. The criticisms I offer are serious and sometimes severe. They do not diminish the book's importance in helping us understand how we might go about achieving popular control over economic power in today's world. Sandel has identified, not democracy's discontent, but the discontent of -- and the alternative public philosophy desired by -- an important contemporary social class. His diagnosis may be sound, even if his prescription proves weak.

1. An Overview

   Democracy's Discontent identifies, criticizes, and offers an alternative to our "public philosophy." A public philosophy is not a form of systematic political philosophy. Rather, it is the philosophy "implicit in our practices and institutions."(3) The nature of my criticisms makes it important that readers have a complete sense of his argument's overall form and content.

   Sandel divides his analysis into two parts. The first examines a range of contemporary political and legal issues, primarily as they have been dealt with by the Supreme Court. Here Sandel finds that our practices express a commitment to what he calls the procedural republic, whose "central idea is that government should be neutral toward the moral and religious views its citizens espouse" and "should provide a framework of rights that respects persons as free and independent selves, capable of choosing their own values and ends."(4) But, Sandel argues, government really "cannot be neutral toward the values and ends its citizens espouse."(5) Instead of constructing a procedural republic, government should pursue "a formative politics, a politics that cultivates in citizens the qualities of character self-government requires."(6) This "republican" politics may better promote liberty than the procedural republic, because the dominant public philosophy "cannot inspire the sense of community and civic engagement that liberty requires."(7)

   The longer, second part of Democracy's Discontent surveys United States history with a general and a more specific aim. The former is to establish that the nation's public philosophy pursued formative projects of various sorts until the public philosophy of the procedural republic recently attained dominance. The latter is to show that each of those formative projects recognized the impact of economic arrangements on citizenship and civic virtue.

   Sandel begins with a quick survey of political theory. Liberalism, he says, rests on an appealing "image of the self as free and independent, unencumbered by aims and attachments it does not choose for itself, and on "the case it implies for equal respect."(8) "Despite its powerful appeal," however, "the image of the unencumbered self is flawed" because "[i]t cannot make sense of our moral experience" of "moral ties that may claim us for reasons unrelated to a choice."(9) Rather, a public philosophy must acknowledge that "we think of ourselves as encumbered selves, already claimed by certain projects and commitments."(10)

   The next chapter provides an equally quick overview of our constitutional history, arguing that the modern priority of individual rights, the ideal of neutrality, and the conception of persons as freely choosing, unencumbered selves"(11) is a relatively recent development in the United States. The Lochner era marked this change: "For the first time in American history, rights functioned as trumps. Liberty no longer depended on dispersed power alone, but found direct protection from the courts."(12) [L]ater courts," drawing inspiration from dissents by Chief Justice Harlan Fiske Stone and Justices Oliver Wendell Holmes and Louis Brandeis, "install[ed] the priority of right in the further sense of the Constitution as a framework of rights that is neutral among ends."(13) Sandel concludes this survey by discussing the Supreme Court,s flag salute cases. In denying government the power to require school children to salute the flag, the Court committed itself to the view that "[p]atriotism would be a matter of choice, not of inculcation, a voluntary act by free and independent selves.... With West Virginia v. Barnette, the procedural republic had arrived."(14)

   The succeeding two chapters examine constitutional issues involving religious liberty, free speech, privacy, and policy issues such as divorce. Establishment Clause doctrine stressing the government's duty of neutrality among religions and between religion and nonreligion naturally attracts Sandel's attention. Even dissenters spoke "in the name of neutrality,"(15) and when the Court has upheld religious practices like a municipal creche, "it has taken pains to maintain that the religious aspect is only incidental."(16) The Court's recent cases turn on "the right to choose [religious] beliefs themselves."(17) On this view, the Constitution commands not "respect for religion, but respect for the self whose religion it is, or respect for the dignity that consists in the capacity to choose one's religion freely."(18) This, however, "is inadequate to the liberty it promises.... Not all religious beliefs can be redescribed without loss as the product of free and voluntary choice by the faithful.'"(19)

   Sandel's discussion of free speech law again unsurprisingly focuses on the doctrine of content neutrality. That doctrine is "a recent development,"(20) which, according to Sandel, displaced an earlier "two-level" theory in which some speech was strongly protected and other speech was unprotected. "The erosion of the two-level theory relieves the Court of the task of assigning values to various categories of speech, and so signals the rise of neutrality as a principle of First Amendment jurisprudence."(21) This development was accompanied by a shift in theoretical emphasis within free speech law: Theories treating speech as essential to self-government were displaced by theories treating speech as essential to self-expression.(22)

   The liberal theory of "personhood and speech," Sandel concludes, is open to at least two objections": First, protecting racist speech or "violent pornographic depictions ... may fail to respect persons as members of the particular communities to which they belong, and on whose status their social esteem may largely depend," and second, "enforcing the theory that speech ... never constitutes social practices fails to acknowledge the injuries that speech can inflict independent of the physical harm it may cause."(23) To the liberal response that the point of constitutional restraints is to limit self-government, Sandel replies that sometimes attention to content may actually promote liberty. In support, he cites a decision by District Judge Frank Johnson allowing a protest march at least in part on the content-based ground that the marchers were seeking to promote civil rights.(24)

   Sandel's discussion of privacy rights and family sounds...