Ordered liberty: a response to three views.

• Author: Fleming, James E.
• Position: Articles in this issue, p. 383, 407, 421

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

We wish to begin by thanking Constitutional Commentary for publishing these three thoughtful reviews of our book, Ordered Liberty: Rights, Responsibilities, and Virtues. The essays by Abner Greene, Ken Kersch, and Toni Massaro (1) reflect a rich and illuminating range of perspectives on our project. We will respond briefly to each.

1. TONI M. MASSARO, SOME REALISM ABOUT CONSTITUTIONAL LIBERALISM

   We are grateful to Toni Massaro for her careful and sympathetic reading of our book. It is encouraging that she believes that Ordered Liberty contributes to making sense of contemporary rights practice--and liberal democracy--in the United States. We concur with her that the November 2012 election provides a useful opportunity, both before the election, when she wrote her review, and after, as we write this response, to reflect on "the national mood" with respect to the evident competing visions of government "as ally" versus government "as antagonist." (2) She helpfully relates these clashes at the level of political campaigns to the broader debates over constitutional law and political theory that we address. Moreover, it is especially encouraging that she concludes that the book has something useful to say to "the various patriot armies marching under American constitutional banners." (3) Indeed, this assessment contrasts sharply with that of Ken Kersch, who faults us for situating our book--including its title--"at a stratospheric level of abstraction," oblivious to the practical battles of contemporary social and political movements taking place on the ground below. (4)

   Massaro grasps that claims about the Constitution and about the best balance between rights and responsibilities, governmental authority and individual liberty, liberty and equality, and so forth, are at issue in many of these movements. Again, a contrast with Kersch's review is instructive. While he views our project as straining to produce a "new liberalism" relevant to America, (5) Massaro perceives that "the scope and content of constitutional liberalism are very much at issue" in contemporary national debates about "the proper reach of government authority." (6) She indicates that Ordered Liberty can provide "[m]ore realism about our constitutional liberalism." (7) She argues that our book shows "the complexities and paradoxes of our constitutional law as it is" at a time when "a growing number of people" argue for "tectonic changes" in it and "some even favor a second constitutional convention." (8) We consider our time on the book well spent if a thoughtful scholar like Massaro draws this conclusion, given her own substantial contributions to making sense of some of the constitutional controversies we take on in Ordered Liberty.

   In that regard, we especially appreciate her image of a "liberty spectrum" as a way to characterize what we describe as thin versus thick justifications for rights, and her observation that constitutional rights can migrate from one end of the spectrum to the other over time. (9) She offers the example of the evolving level of constitutional protection for gay men and lesbians, from decriminalizing sodomy on a toleration rationale to allowing same-sex couples to marry (a move, we suggest, entailing appeals both to rights and to moral goods (pp. 177-206)). Her point that "constitutional liberalism in practice is both thick and thin" (10) is one missed by Kersch, who views our approach to rights justification as moving immediately to full respect and appreciation and leaving out steps along the way. (11) It does not.

   Massaro praises us for clearing up many "false dichotomies" about constitutional liberalism and the relationships among rights, responsibilities, and virtues. However, she comments that we introduce a false dichotomy of our own--that between responsibility as autonomy and responsibility as accountability. (12) She makes some cogent points here (for example, "one parent's liberal-inspired civic education may be another's illiberal inculcation of secular humanism"). She contends: "There is no such thing as neutral government education, of a neutral formative project." (13) This is a fair point. But we do not argue for neutrality in the sense of a value-free formative project or a government that is completely neutral about which ends it should promote. To be sure, some people will reject government's ends as an "orthodoxy" contrary to their basic values. We used the autonomy/accountability point to stress the importance of a realm of personal self-government. When we said that the two were related, we meant to get at the authority of government to engage in a formative project and also to try to persuade or promote its own ends. Further, we meant to acknowledge that, in a regime that protects rights to self-government, there is ample room for non-governmental actors--be they individual citizens or social movements--to voice views about rights and their responsible exercise. (pp. 40-45) We concur with Massaro (as well as with Abner Greene, discussed below) that a critical distinction between these two forms of responsibility is that between coercion and persuasion. As Massaro observes, "responsibility as autonomy more emphatically focuses attention on the liberal concern about coercion." (14)

2. KEN I. KERSCH, BRINGING IT ALL BACK HOME?

   Kersch titles his essay "Bringing It All Back Home"? As Bob Dylan fans who love his album of that name, we take the title as a compliment, even if Kersch did not exactly intend it as such. It is an unwitting compliment in that, even while Kersch faults our book for supposedly being pitched, like the work of John Rawls and Ronald Dworkin, at "a stratospheric level of abstraction," (15) he credits us with bringing our analysis back home to the American constitutional order. What is more, even as he criticizes our book for aiming at timeless abstractions, he acknowledges "the book's ... substantive timeliness" and its "perfect harmony with the moment." (16) We daresay that only someone with a strong allergic reaction to the very mention of Rawls and Dworkin would fault our book for a "stratospheric level of abstraction." We appreciate Massaro's praise for the concreteness of our engagement with the cases protecting basic liberties, our understanding of the social movements supporting (and opposing) recognition of these liberties, and our justifications for the basic liberties in the context of our present predicaments.

   Further developing his thought about timeliness, Kersch suggests that the publication of our book demonstrates that "[y]et another Owl [of Minerva], it seems, has taken flight." (17) We take his allusion to Hegel's Owl of Minerva with reference to our book as another unintended compliment. For, in Hegel's formulation, the owl has wisdom in understanding an historical era that has just come to a close. But his allusion is incomplete, for he does not establish that the era we show wisdom in understanding has come to a close rather than perhaps faces a bright future. For the allusion to have genuine purchase here, the Supreme Court would have to overrule or cut back on Lawrence v. Texas (18) or Planned Parenthood v. Casey (19) or the whole line of cases protecting basic liberties under the Due Process Clause just as we published our book's full and coherent justification of them--just as our form of civic liberalism had "gotten right with...