Expressive liberty, moral pluralism, political pluralism: three sources of liberal theory.

• Author: Galston, William A.

1. THE CIVIC AND EXPRESSIVE DIMENSIONS OF LIBERALISM

   Above and beyond artful institutional contrivances, liberal democracies rely on cultural and moral conditions that cannot be taken for granted. To remain "liberal," however, these regimes must safeguard a sphere in which individuals and groups can act, without state interference, in ways that reflect their understanding of what gives meaning and value to their lives. What is the relationship between the "civic" and the "expressive" strands of liberalism? What should we do when state action designed to bolster the preconditions of liberal democracy constrains expressive liberty in troubling ways, or conversely, when the exercise of expressive liberty is at odds with what may be regarded as liberal democratic preconditions. This conflict inevitably arises in public institutions such as schools, but it also emerges when the state seeks to regulate the structure and conduct of voluntary associations.

   Must civil associations mirror the constitutional order if they are to sustain that order? The resolution of this issue revolves in part around empirical questions. For example, to what extent do illiberal or undemocratic voluntary associations engender patterns of conduct, belief, and character that weaken liberal democratic polities? Scholars certainly do not agree on this point in general, and they rarely agree in specific cases.(1) Theorists such as Stephen Macedo are right to emphasize the dangers of complacency.(2) Liberal democratic citizens are made, not born, and we cannot rely blithely on the invisible hand of civil society to carry out civic paideia.(3)

   Alternatively, Nancy Rosenblum urges attention to the dynamics of moral and political psychology; theoretical abstractions can lead us to overestimate the actual importance of "congruence" between regime-level principles and the associations of civil society.(4) Incongruity evokes fears that frequently outrun facts, as they did in the nineteenth century when waves of Catholic immigration led Protestant Americans to worry about the future of democratic institutions.(5) Notwithstanding these fears, Catholics soon became the most loyal of citizens--and one of the most adept groups at the game of grassroots democratic politics.(6)

   Rosenblum asks us to look at different functions of civil associations. As she explains, they can express liberty as well as personal or social identity; provide arenas for the accommodation of deep differences; temper individual self-interest; help integrate otherwise disconnected individuals into society; nurture trust; serve as seedbeds of citizenship; and resist the totalizing tendencies of both closed communities and state power.(7)

   It is not obvious as an empirical matter that civil society organizations within liberal democracies must be organized along liberal democratic lines in order to perform some or all of these functions. Many of the fears Protestants voiced a century ago concerning the antidemocratic tendencies of Catholicism now are focused on Protestant fundamentalism.(8) It appears that in practice, however, these denominations, far from undermining democracy, serve as arenas of political mobilization and education. Consider recent findings reported by political scientists Sidney Verba, Kay Schlozman, and Henry Brady: these churches serve as important training grounds for political skills, particularly for those without large amounts of other politically relevant assets such as education and money.(9)

   There is room for deep disagreement about the policies that many religious groups are advocating in the political arena, but there appears to be little doubt that these groups have fostered political education and engagement to an extent that few other kinds of associations can match, at a time when most social forces are pushing toward political and civic disengagement.(10) In addition, they seem to have done so without undermining their members' commitment to democratic pluralism. Alan Wolfe's recent empirical study of middle-class morality shows that among self-declared religious conservatives, support for core democratic principles and for tolerance of difference is very high.(11)

   Although the impact of civil society on the formation of citizens is a legitimate concern, the burden of proof lies with those who seek to shape or restrict the internal life of nonpublic associations. In my judgment, the available evidence does not warrant alarm, certainly not to the point of justifying new intrusions into parental and associational practices.

   The empirical relation between the civic and expressive dimensions of liberal democracy is nested in a conceptual issue: What is the content of citizenship that institutions should be trying to strengthen? Without venturing to answer this question, let me offer a hypothesis: the more demanding the conception of citizenship, the more intrusive the public policies needed to promote it. Toward the beginning of Emile, Rousseau retells Plutarch's story of the Spartan mother with five sons in the army.(12) A Helot arrives with the news that all have been slain in battle.(13) "Base slave," she retorts, "did I ask you that?"(14) "We won the victory," he replied, whereupon the Spartan mother hastened to the temple to give thanks to the gods.(15) Rousseau comments laconically: that was a citizen.(16) The example may seem farfetched, but the point is clear: the more our conception of the good citizen requires the sacrifice of private attachments to the common good, the more vigorously the state must act (as Sparta did) to weaken those attachments in favor of devotion to the public sphere.(17)

   Within the civic republican tradition, state intrusion to foster good citizens poses no threshold issues; not so for liberal democracy, whose core commitments place limits on the measures the state legitimately may employ.(18) I want to explore the resources liberal theory can bring to bear on the adjudication of these tensions, taking as my point of departure some examples from American constitutional law.

2. CIVIC AND EXPRESSIVE DIMENSIONS OF AMERICAN CONSTITUTIONALISM

   Reflecting the nativist passions stirred by World War I, the State of Nebraska passed a law forbidding instruction in any modern language other than English.(19) A Nebraska trial court convicted a teacher in a Lutheran parochial school under this statute for teaching a Bible class in German.(20) In Meyer v. Nebraska, decided in 1923, the Supreme Court struck down this law as a violation of the Fourteenth Amendment's guarantee of liberty.(21) Writing for the Court, Justice McReynolds declared:

   That the State may do much, go very far, indeed, in order to improve the quality of its citizens, physically, mentally, and morally, is clear; but the individual has certain fundamental rights which must be respected.... The desire of the legislature to foster a homogeneous people with American ideals prepared readily to understand current discussions of civic matters is easy to appreciate.... But the means adopted, we think, exceed the limitations upon the power of the State and conflict with rights assured to plaintiff in error.(22) The majority decision identified the underlying theory of the Nebraska law with the plenipotentiary State of Sparta, as well as with Plato's Republic, which it quoted at length and sharply distinguished from the underlying premises of liberal constitutionalism.(23)

   Consider, second, Pierce v. Society of Sisters, decided in 1925.(24) Through a ballot initiative, the people of Oregon had adopted a law requiring parents and legal guardians to send all students between the ages of eight and sixteen to public schools.(25) The Society of Sisters, an Oregon corporation that maintained a system of Catholic schools, sued, claiming that the law was inconsistent with the Fourteenth Amendment.(26) The Supreme Court emphatically agreed:

   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. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.(27) Consider, finally, the case of Wisconsin v. Yoder,(28) decided by the Supreme Court a quarter century ago. Yoder presented a clash between a Wisconsin law, which required school attendance until age sixteen, and the Old Order Amish, who claimed that high school attendance would undermine their faith-based community life.(29) The majority of the Court agreed with the Amish, and asserted that the State of Wisconsin had not made a compelling case for intervening against their practices: "[H]owever strong the State's interest in universal compulsory education, it is by no means absolute to the exclusion or subordination of all other interests.... [T]his case involves the fundamental interest of parents, as contrasted with that of the State, to guide the religious future and education of their children."(30)

   Taken together, these three cases stand for two propositions. First, in a liberal democracy, there is in principle a division of authority between parents and the state.(31) The state has the right to establish certain minimum standards, such as the duty of parents to educate their children, and to specify some minimum content of that education, wherever it may be conducted.(32) Parents, however, have a wide and protected range of choices as to how to discharge that duty to educate.(33) Suitably revised and extended, these considerations apply to the liberties of civil associations as well. Second, there are some things the liberal state may not do, even in the name of forming good citizens.(34) The appeal to the requisites of civic education is powerful, but not always dispositive when opposed by claims based on the authority of...