Ordered Liberty: Rights, Responsibilities, and Virtues.

• Author: Kersch, Ken I.
• Position: Book review

ORDERED LIBERTY: RIGHTS, RESPONSIBILITIES, AND VIRTUES. James E. Fleming (1) and Linda C. McClain. (2) Cambridge, Mass.: Harvard University Press. 2013. Pp. 371. $49.95 (Cloth).

"Can liberalism still tell powerful stories?" asked the intellectual historian and political theorist Eldon Eisenach in a recent essay. (4) In the late nineteenth and early twentieth centuries, the progenitors of the contemporary American liberal/left--Populists, proponents of the Social Gospel, and Progressives--met and beat the era's powerful legal and political conservatism with appeals to justice, equality, and a "new" freedom, not as abstract concepts, but made through telling stirring stories about the country's historical trajectory as a nation, and its progress toward Christian virtue. (5) The liberal Democratic triumph and establishment of a governing regime, however, coincided with the subsequent outbreak of the Second World War and then the Cold War. Both called into sharp question some of the main lines of the Populist and Progressive Era's proto-liberalism, including its breast-beating nationalism, its attraction to mass democracy, and, in domestic politics, its aggressively theological us-versus-them substantive commitments. Liberals, now in control of all branches of the national government (and most of the state governments), had no intention of retreating from any of their substantive policy commitments. But many started talking about those commitments, and justifying them, in new ways they believed to be better suited to the ambient intellectual and political context. In an age of liberal dominance, the commitment to the science of society and value neutrality became the new gold-standard in the thought and rhetoric of politics, public policy, and law. (6)

In his account of these developments, Eisenach argued that the decision of mid-twentieth century American liberals to make a commitment to neutral principles the cornerstone of their understanding of liberal democracy had three major effects. First, it gave preference in political and legal discourse to apodictic claims of individual right, as against an alternative understanding that the nature and scope of rights was to be determined politically, with the end of achieving common public purposes. This preference, in turn, underwrote the notion that courts were the polity's preeminent, and only reliable, "forum of principle." This served to redirect progressive/liberal reform out away from electoral politics and into the courts to an historically unprecedented degree. Second, it moved liberals away from the kinds of nationalist and patriotic visions referencing a common past and dreaming of a common, and better, future into legalistic and quasi-philosophical arguments about neutral principles of justice and fairness, to be applied by appropriately schooled judges. Third, these developments created a "narrative vacuum" which, should they seize the opportunity, the conservative opposition could fill anew with their own nationalist, religious, and patriotic visions--which, by the 1970s, conservatives have done. American liberalism has been on the defensive ever since.

It is precisely as this night fell on liberal dominance in American politics that two resplendent Owls of Minerva took flight: John Rawls's A Theory of Justice (1971) and Ronald Dworkin's Taking Rights Seriously (1977). (7) While armies of brainy Rawlsian political theorists and Dworkinian jurisprudes moved towards consolidating their Ivory Tower empires, conservatives reconstructed American politics, public policy, and constitutional thought. These two sophisticated, subtle, and soporific tomes certainly kindled enthusiasm amongst careerists in the groves of academe. But their all-but-storyless, a-political, ostensibly neutral, and maddeningly abstracted exposition left others cold. As liberalism's substitution of philosophical for narrative coherence, Eisenach concluded, "came liberalism's loss of the capacity to mobilize national majorities for common ends." (8) While Rawls and Dworkin may not be fully responsible for this these developments, they contributed to it in a major way, and epitomized it.

James Fleming and Linda McClain's new contribution to American constitutional theory, Ordered Liberty: Rights, Responsibilities, and Virtues bears all the marks of the Rawlsian/Dworkinian project: the Harvard imprint, the title pitched at a stratospheric level of abstraction (with its attendant promise to unite us all through consensus over the best and highest principles), and the presentation in the voice of the royal "we" (which makes it sound like Ronald Dworkin speaking ex cathedra, but here can be attributed to the book's provenance as a team effort). Ordered Liberty is meant to be a major intellectual event, announcing a new direction for Rawlsian/ Dworkinian constitutional thought. "Our constitutional liberalism" (for which the authors frequently substitute the term "constitutional liberalism" tout court) proposes an intricately negotiated Pax Academia between liberal constitutional theorists typically held to be uncompromising champions of autonomy and rights as aggressively enforced by courts and civic republican, communitarian, and conservative political theorists and legalists (like Michael Sandel, Mary Ann Glendon, Cass Sunstein, and others) who insist that politics and law be less about the judicial enforcement of (speculative/broadly defined) abstract right in the name of the autonomous individual and more about the valuing of the claims of concrete, locally and historically-constituted associations and communities, with a focus on responsibility, morality, and virtue. Put otherwise, they propose through an act of grand theoretical synthesis, to bring the liberal-communitarian debate to a close.

Amongst American historians, that debate, under the guise of liberalism versus republicanism, was brought (more or less) to a close some time ago. Not so, apparently in political and legal theory, where, while it still might be for this world, is nevertheless, by now, getting quite long in the tooth. One fears that, in the realm of political theory, its terms might be perpetual, as the debate goes to the heart of what Duncan Kennedy has called the "fundamental contradiction" of liberalism--that "relations with others are both necessary and incompatible with our freedom." This is the dilemma of individual versus collective self-determination. (9) Yet, historically, even in the realm of theory, it seems that a modus vivendi has been arrived at, at least within American constitutional law. As Fleming and McClain themselves explicitly and systematically demonstrate, a liberal-communitarian rapprochement is, and has long since, been practiced both on the Supreme Court...