Ordered Liberty: Rights, Responsibilities, and Virtues.

• Author: Massaro, Toni M.
• Position: Book review

ORDERED LIBERTY: RIGHTS, RESPONSIBILITIES, AND VIRTUES. James E. Fleming (2) and Linda C. McClain. (3) Cambridge, Mass.: Harvard University Press. 2013. Pp. 371. $49.95 (Cloth).

1. INTRODUCTION

   Presidential elections often are good barometers of the national mood, though their fullest implications are likely best read in hindsight rather than on the eve of the primaries. Nevertheless, a fair reading of the 2012 national mood, as of this pre-election day writing, is that the American people are divided between a vision of government as ally versus government as antagonist. On the partisan poles are those who may be described as strongly and consistently pro-government in their leanings, on the one end, and those who are strongly and consistently libertarian, on the other end. Although most Americans likely lie in between these statism poles, and selectively invoke the benefits or harms of government power, broad-strokes political rhetoric today increasingly rings libertarian bells. Anxiety about government efficacy, government wisdom, and government expanse has prompted conservatives and liberals alike to ask whether, and in what contexts, government assistance is a welcome means of assuring that individuals can fulfill their potential as well as assuring that the country can realize collective goals, versus an unwelcome, "nanny state" intrusion into individual freedoms.

   In the scholarly version of these wider political debates, the discussion about the limits of government power over individual freedoms sometimes is couched in terms of communitarian versus liberal visions of government power, and how American constitutional law shapes each vision. Influential communitarian scholars for years have critiqued strong liberal theories of rights on the ground that they "exalt rights over responsibilities, licensing irresponsible conduct and spawning frivolous assertions of rights at the expense of encouraging personal responsibility and responsibility to community" (p. 1). In their view, limiting government power in the interest of preserving individual liberty has contributed to an erosion of the public good, and a weakening of civic virtue. Civil liberties and civil rights, as they have evolved since the 1960s, have imposed significant social costs that have mounted in ways that seriously compromise our collective well-being. According to these critics, "liberty as license"--that is, an approach to rights that takes them too absolutely--has been pursued instead of an "ordered liberty" that bows more deeply to the common good and that takes the responsibility part of the rights/responsibility balance more seriously (p. 1).

   Central to this debate is how much, and in what contexts, government should be allowed to inculcate civic virtue. At what point does government intervention impermissibly erode individual and private associational autonomy? For example, is a federal command that all Americans do their part to assure affordable health insurance for all by purchasing insurance or suffering tax consequences an expression of "ordered liberty" or an undue invasion of liberty? Is a decision by a young and apparently healthy person to forgo purchase of health insurance irresponsible? A decision to undergo an early-term abortion? To enter into a same-sex relationship? Or, are all of these decisions ones that a liberal constitutional order properly must leave to the individual with little or no government restrictions?

   How, if at all, do the classic communitarian arguments in favor of allowing government to inculcate civic virtue stack up against the realities of governance? Do growing concerns about government dysfunction, gridlock, corruption, and hyper-partisanship undermine of fortify the communitarian arguments against liberal rights where they conflict with a "common good"? Finally, are communitarians right to insist that the recognition of liberal rights in fact requires or encourages government (and others) to suspend critical judgment of the decisions in ways that obscure the costs of rights, the "wrongness" of behaviors that nevertheless receive legal protection, and their potential harm to others?

   James E. Fleming and Linda C. McClain have authored an important and intellectually accessible new book that canvasses the communitarian critique of a liberal theory of rights, and responds to its central claims. The book's arrival is especially well timed given the roiling national debate about the proper reach of government authority, and may offer an important corrective to some of the Constitution-based claims being made in these debates, if not to more general claims about a culture of selfishness. It also debuts at a moment when arguments for and against particular constitutional rights, such as reproductive rights, are gaining momentum. That is, the scope and content of constitutional liberalism are very much at issue, with some seeking more liberty and others favoring less restraint on government power.

   Building on decades of thoughtful scholarship that addresses communitarian and progressive objections to liberal theories of rights, the authors offer a persuasive response to arguments that cultural liberalism--the popular understanding and expression of liberal rights--is a natural extension of constitutional liberalism. As they explain, our constitutional liberalism, properly understood, is neither a deep font of strong libertarian principles that greatly restrict government power to inculcate virtues, nor a source of limitless government power to do so. Rather, it imposes a highly contextual brake on government power that rises and falls even within the context of so-called "fundamental rights" where liberty is most protected.

   The constitutional doctrine they discuss matters, because the doctrine is the framework within which American constitutional liberalism operates. This judge-made law affords government ample power to incentivize virtue, to inculcate values, and even to penalize or criminalize its version of individual "irresponsibility." In fact, libertarian complaints stem from a sense that the law offers individuals too little protection, not too much. Consequently, the claim that constitutional liberalism has caused the alleged slide in our collective virtue by insisting on "empty toleration" of values and behaviors seems seriously overblown. Little in modern constitutional law or in actual government practice supports a narrow reading of government's moral authority, or a dichotomous reading of rights versus responsibilities.

   Fleming and McClain support this claim with several compelling constitutional examples. With each, they ask whether the law in fact requires government neutrality or "empty toleration." Their analysis shows that government neutrality is rarely required, even in zones of otherwise protected constitutional privacy. For example, the constitutionally protected right to abortion does not compel the state to remain neutral regarding reproductive choices. Current law allows the government to weigh in on the exercise of this fundamental right, and many states now do so in increasingly forceful, non-neutral, and moralizing ways (pp. 53-63, 69-73).

   Likewise, other fundamental rights--including freedom of expression--do not render government mute in the face of personal choices. Protection of harmful political expression--such as excessively vitriolic and misleading characterizations of one's political opponents or lies about one's own accomplishments or about others (5)--does not prohibit official or private condemnation of dirty politics or shameful falsehoods. Nor does protection of sexual autonomy or marital rights require government to remain agnostic regarding the responsible exercise of these rights.

   Also, government may be constitutionally required to protect individual rights, but it is not required to provide financial support for the exercise of the rights. It may do so, short of fairly limited and contested constitutional limits. This in turn gives government formidable power to influence private decisions--6Power that can look, and feel, more coercive than instructive. (6)

   Still another important caveat to constitutional liberalism is that it polices only government power, not private power. With the notable exception of the Thirteenth Amendment, (7) which restricts private power directly, constitutional rights obtain vis-a-vis government authority, not private authority. The so-called "state action doctrine" (8) is a profoundly significant limit on the reach of constitutional rights that is often neglected in arguments against expansive civil liberties.

   Finally, constitutional liberalism respects rights on a continuum. The constitutional practice entails a balance between rights and responsibility, between government and private power, not an all-or-nothing choice between them. It identifies rights, and grants the judiciary power to police them. But judges do so in a context, and according to standards, that typically--not rarely--require deference to the politically accountable branches of government.

   The constitutional case law therefore can accommodate communitarian arguments about the balance between rights and responsibilities. In each area of constitutional rights, the law offers rules and important exceptions. Due process protects reproductive privacy, except when it does not. (9) Freedom of expression prohibits government limits on political speech, except when its national security consequences seem too great, (10) The First Amendment requires accommodation of religious pluralism, except when it may leave "public education in shreds." (11) The case law allows for family autonomy, except when it costs too much in terms of a collective interest in child physical well-being and capacity for meaningful adult autonomy and citizenship. (12) Constitutional law, unsurprisingly, tracks a wider cultural ambivalence about unbridled freedom from regulatory and...