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Liberal Virtues, Constitutional Community

Published online by Cambridge University Press:  05 August 2009

Stephen Macedo
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Extract

Liberal constitutionalism embodies an aspiration to public moral justification. The practice of liberal politics, on this view, is bound up with an ongoing effort to justify our political arrangements to one another, an effort that must not be collapsed into the mere affirmation of community standards or conventions. This ideal of public justification lends support to judicial review, an institution that helps make constitutional government a publicly principled enterprise. But it also suggests the value of drawing the “political” branches into the interpretive project: the Supreme Court is not the final interpreter of our Constitution's liberal public morality. The “political” branches of the national government, and citizens themselves play a crucial role in the interpretive process. Viewed in this way, the theory and practice of constitutionalism embody ideals of virtue, citizenship, and community that add up to positive rejoinders to liberalism's communitarian and republican critics.

Type
Research Article
Information
The Review of Politics , Volume 50 , Issue 2 , Spring 1988 , pp. 215 - 240
Copyright
Copyright © University of Notre Dame 1988

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References

Notes

1. For their helpful comments on earlier drafts of various sections of this paper, I am deeply indebted to Sotirios A. Barber, Amy Gutmann, Stephen Holmes, Randy Krozsner, Steven Lukes, Walter F. Murphy, Judith N. Shklar, Scott Wayland, and the editor of this journal, Donald P. Kommers.

2. Tocqueville, Alexis De, The Old Regime and the French Revolution, trans. Gilbert, Stuart (Garden City, NY: Doubleday, 1955), p. 117.Google Scholar On the importance of governmental immunity from prosecution as a means toward the promotion of popular servility and public despotism, see also Part 2, chapters 4 and 11. Dicey's, A. V.The Law of the Constitution (Indianapolis: Liberty Press, 1982)Google Scholar also discusses the importance of independent courts of law as fora of public justification that check administrative arbitrariness, see chap. 5, and his discussion of the restrictions that Napoleon placed on the reach of common law jurisdiction over public officials, chap. 7.

3. The claim that liberal politics has undermined republican virtue is associated most prominently with Pocock, J. G. A., The Machiavellian Moment (Princeton: Princeton University Press, 1975);Google Scholar those who have advanced the claim that liberalism undermines the value of community include Taylor, Charles, “Atomism,” and “The Nature and Scope of Distributive Justice,” in Philosophy and the Human Sciences Philosophical Papers 2 (Cambridge: Cambridge University Press, 1985);CrossRefGoogle ScholarMaclntyre, Alasdair, After Virtue (Notre Dame: University of Notre Dame Press, 1981);Google ScholarSandel, Michael, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982).Google Scholar

4. Rawls, John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1970), p. 16;Google Scholar and see Ronald, Dworkin's discussion of Rawls, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1979), chap. 6, esp. pp. 162–63;Google Scholar also extremely helpful is O'neill, Onora, “The Public Use of Reason,” Political Theory 14, no. 4 (11 1986): 523–51.CrossRefGoogle Scholar

5. See Rawls's, discussion of the constraints on argument imposed by the “concept of right,” Theory, pp. 130–36.Google Scholar

6. See Rawls, Ibid., p. 49; and Nagel, Thomas, “Moral Conflict and Political Legitimacy,” Philosophy and Public Affairs 20, no. xx (1987): 215–40, 232.Google Scholar

7. I eschew the label “contractualism” because, as deployed by Thomas Scanlon, it seems to me to overemphasize agreement at the expense of criticism and reasonableness; see “Contractualism and Utilitarianism,” in Utilitarianism, ed. Sen, A. and Williams, B. (Cambridge: Cambridge University Press, 1984), pp. 103-28.Google Scholar I generally accept (with reservations that should become clearer) Rawls's, notion of reflective equilibrium, Theory, pp. 19–21,Google Scholar and see “The Idea of an Overlapping Consensus,” Oxford Journal of Legal Studies, vol. 7, no.1, pp. 1–25.CrossRefGoogle Scholar

8. Lord Devlin appeals to the “feeling of disgust” of “the man on the Clapham omnibus” to justify prohibiting homosexuality; Devlin, Patrick, “Morals and the Criminal Law,” in The Enforcement of Morals (London: Oxford University Press, 1965), pp. 1–25.Google Scholar

9. See Oakeshott, Michael, “Rationalism in Politics,” Rationalism in Politics and Other Essays (London: Methuen, 1977)Google Scholar and the discussion of Rorty below.

10. See my discussion of Sandel below.

11. Rorty, Richard, Philosophy and the Mirror of Nature (Princeton: Princeton Univsity Press, 1979), p. 178, and see Part 2 generally.Google Scholar

12. Rene Descartes, Meditations, Letter of Dedication.

13. Mill, John Stuart, On Liberty (New York: Norton, 1975), p. 22.Google Scholar

14. Ibid., p. 52.

15. This “method” for generating justified beliefs is more or less what Nagel, seems to endorse in The View from Nowhere (New York: Oxford, 1986), p. 154.Google Scholar It is also quite similar to what Popper advocates in The Logic of Scientific Discovery (New York: Harper Torchbooks, 1968)Google Scholar; see his 1959 preface, pp. 15–22.

16. Popper, Logic, p. 111. I do not mean to endorse Popper's Logic as a whole, his claims about “basic statements” seem especially problematic; see chap. 5.

17. Rorty, , “Postmodernist Bourgeois Liberalism,” The Journal of Philosophy 80 (10 1983): 583–89, 587CrossRefGoogle Scholar, criticizing Dworkin's political reliance on general moral principles.

18. Ibid., p. 586.

19. Rorty, , Mirror, p. 176.Google Scholar

20. As Thrasymachus does in Plato's Republic, bk. 1, 338–39.

21. Oakeshott's discussion of Plato's “cave analogy,” is similar in spirit to Rorty's position here; see On Human Conduct (Oxford: Oxford University Press, 1975), pp. 27–31.Google Scholar

22. King invoked Socrates in his “Letter from Birmingham Prison,” reprinted in Bedau, H. A., Civil Disobedience: Theory and Practice (New York: Pegasus, 1969);Google Scholar note also the reference to the “indelible reproach” earned by the Athenians in Madison's Federalist, No. 63.

23. Bernstein, Richard J., “One Step Forward, Two Steps Backward: Rorty on Liberal Democracy and Philosophy,” Political Theory 15, no. 4 (11 1987): 538–63, 558–61.CrossRefGoogle Scholar I have benefited greatly from Bernstein's excellent essay, and from Benhabib, Seyla, “Autonomy, Modernity, and Community: An Exchange Between Communitarianism and Critical Social Theory” (Paper presented at the 1987 Annual Meeting of the American Political Science Association, Chicago, 1987).Google Scholar

24. Rorty, , “Postmodernist,” p. 586Google Scholar, quoting Sandel, , Limits, p. 179.Google Scholar Elsewhere, Rorty, emphasizes the importance of encouraging the philosophical and intellectual “identification with our community,” “Habermas and Lyotard on Post Modernity,” Praxis International 4, no. 1 (1984): 32–44, 41.Google Scholar

25. Rorty, , “Postmodernist,” p. 586.Google Scholar

26. Ibid., p. 587.

27. Rorty, appears to want to give Plato some of his own medicine: Poet-kings would rule Rorty's ideal republic and the philosophers would be banished along with “the spirit of seriousness,” see Mirror p. 40;Google Scholar and Bernstein's excellent discussion, “One Step.”

28. Sandel, discusses this problem, Limits, pp. 145–47.Google ScholarWalzer, only suggests that political boundaries are more likely than others to embrace shared meanings (Spheres of Justice, [New York: Basic Books, 1983], pp. 28–29).Google Scholar

29. Sandel, , Limits, p. 56.Google Scholar

30. Ibid., p. 179.

31. That the “Achilles’ heel” of communitarianism could be its inability to grapple adequately with heterogeneity and conflict is suggested by several important commentaries: Gutmann, Amy, “Communitarian Critics of Liberalism,” Philosophy and Public Affairs 14, no. 3 (Summer 1985): 308–322;Google ScholarHertzog, Don, “Some Questions for Republicans,” Political Theory 14, no. 3 (08 1906): 473–93;CrossRefGoogle ScholarHirsch, Harry, “The Threnody of Liberalism,” Political Theory 14, no. 3 (08 1986): 423–49;CrossRefGoogle ScholarKatz, Robert Alan, Communitarianism and the Limits of Intercommunal Respect, (Unpublished Senior Thesis, Harvard College, Class of 1987);Google ScholarYack, Bernard, “Community and Conflict in Aristotle's Political Philosophy,” Review of Politics 47 (01 1985): 92–112.CrossRefGoogle Scholar I have benefited greatly from these excellent discussions.

32. Barber, Sotirios A., On What the Constitution Means (Baltimore: Johns Hopkins, 1984), for his discussion of tradition see pp. 84–85.Google Scholar I have learned much from this excellent study.

33. Similarly, Ronald Dworkin argues that conventions are of no use apart from a critical moral perspective (which he characterizes as an “interpretive” attitude) which discerns the valuable principles implicit in conventions and so provide guidance on how conventions should be extended to new cases, and how conflicts among conventions should be settled, see Law's Empire (Cambridge, MA: Harvard University Press, 1986), chap. 4.Google Scholar

34. Rorty, Richard, Consequences of Pragmatism (Brighton, Sussex, UK: Harvester Press, 1982), Introduction, p. xxxvi.Google Scholar

35. Rorty, , “Postmodernist,” p. 587Google Scholar, and see “Habermas and Lyotard,” p. 41, where Rorty commends “the history of concrete social engineering which made the contemporary North Atlantic culture what it is now.”

36. Rorty, may not believe it is possible to adjudicate reasonably between political standpoints conceived of as “language games”: “The vocabulary of ancient Athenian Politics as against that of Jefferson, the moral vocabulary of St. Paul as against that of Freud... it is difficult to think of the world as making one of these better than another ….” “The Contingency of Language,” London Review of Books, 17 04 1986.Google Scholar

37. Rorty's, standards of evaluation are mysterious. He disclaims subjectivism and relativism, and thinks that by, “playing vocabularies and cultures off against one another, we produce new and better ways of talking and acting — not better by reference to a previously known standard, but just better in the sense that they come to seem clearly better than their predecessors,” Pragmatism, p. xxxviiGoogle Scholar, and see page xlii, where Rorty says that pragmatism “sees ethics as neither more ‘relative’ or ‘subjective’ than scientific theory, nor as needing to be made scientific.'” Rorty denies that self descriptions, of either persons or cultures, are morally privileged; we have, he says, an obligation to listen to someone's account of himself, but not to accept it uncritically (Ibid., p. 200–202). This certainly seems correct, but if we are going to reject someone's self-interpretation (say, in a court case) we need articulable reasons for doing so, and articulable standards for guiding our action, or else we may justly be accused of arbitrariness. Rorty says that the Enlightenment is “better” than religion, and that “the pragmatist is betting that what succeeds the ‘scientific,’ positivist culture which the Enlightenment produced will be better” still, better in terms of some standard not yet available? (Ibid., p. xxxviii). Perhaps, but until a better standard can be articulated and defended we must apply the best standards of political morality currently available. Since in political morality people's rights and well being are at stake, we cannot simply “let a thousand flowers bloom,” as we might in the arts and literature. Rorty occasionally invokes the idea of utility as a standard, but not systematically, (see, for instance, Ibid., pp. xix and xli).

38. Thus did Jacksonian democrats dismiss the learned John Quincy Adams, from Hofstadter, Richard, Anti-Intellectualism in American Life (New York: Alfred Knopf, 1963), p. 160.Google Scholar

39. “The community,” says Rorty, , is the source of “epistemic authority,” and philosophy “cannot, by supplying a loftier critical point of view, reinforce or diminish the confidence in our own assertions which the approval of our peers gives us” (Mirror, pp. 187–88).Google Scholar

40. Ibid., pp. 189–90.

41. Ibid., p. 382, footnote 24.

42. Rorty's, certainly lives up to his claim about the authority of anecdote when discussing American politics. But consider Robert Lane's insistence that in America, “The public is endowed with an active sense of justice, a sense that has been said to be ‘the basic template for organizing one's view of the world.’ The sense of justice seems to influence judgments of candidates more than does perceived self-interest; it is employed in interpersonal relations, and in appraising the police, the courts, and not least, market processes” (“Market Justice, Political Justice,” American Political Science Review 80, no. 2 [1986]: 383–401, 397–98).Google Scholar

43. Barber, , Constitution, p. 47.Google Scholar

44. Characterizing the status of judicial review in our popular political culture is not easy, but it is noteworthy that, according to Gallup Polls, people express considerably more confidence in the Supreme Court than Congress. In July 1986, 54% of a survey group expressed a high level of confidence in the Court, compared to 41% for Congress. Only the military, at 63% and organized religion, at 57% scored higher on this survey of public confidence in major institutions (The Gallup Report #253, October 1986, pp. 2–3).

45. Dworkin, , “The Forum of Principle,” in A Matter of Principle (Cambridge, MA: Harvard University Press, 1985), p. 70.Google Scholar And see also Maass, Arthur, Congress and the Common Good (New York: Basic, 1983), who argues that Congress is be understood as, at least in part, an institution that works to elicit a vision of the common good from a structured series of discussions (pp. 28–31).Google Scholar

46. Ibid., chap. 6, esp. pp. 162–63.

47. Dworkin, Ronald, Taking Rights Seriously (Cambridge, MA: Harvard Univesity Press,1977), pp. 22–28 and chap. 4.Google Scholar Constitutional interpretation is, obviously, not an unconstrained exercise in moral reflection: a defensible interpretation must fit enough of the inherited legal materials to count as an interpretation and not simply a moral claim; I discuss these issues at greater length in “The Public Morality of the Rule of Law: A Critique of Ronald Dworkin,” Harvard Journal of Law and Public Policy 8, no. 1 (1985): 79–108.Google Scholar We can view constitutional interpretation as a moral enterprise, however, because, as Sotirios A. Barber argues, interpreters should regard the Constitution's claim to supremacy as an open question of political morality; see his Constitution, chap. 3.

48. Dworkin, Rights, chap. 4.

49. Ibid., 196. Dworkin embraces what Fuller called a “horizontal” and Sanford Levinson a “protestant” theory of law; see Fuller, Lon, The Morality of Law, rev. ed. (New Haven: Yale, 1969)Google Scholar; Levinson, Sanford, “‘The Constitution’ in American Civil Religion,” The Supreme Court Review, 1979, ed. Kurland, P. and Casp, G. (Chicago: University of Chicago Press, 1980), pp. 123–51.Google Scholar

50. Dworkin, , Rights, pp. 162–63.Google Scholar

51. See Locke's, John defense of rebellion in Two Treatises of Government, ed. Laslett, P. (New York: Mentor, 1965), 18 and 19Google Scholar; and Rawls's, John defense of civil disobedience, Theory, sections 55–59.Google Scholar

52. Though the Supreme Court has only occasionally, and fairly recently, explicitly claimed to be the final interpreter of the Constitution, not only for the parties before it and for lower courts, but for Congress and the president as well, see Cooper v. Aaron, 358 U.S. 1 (1958)Google Scholar; Powell v. McCormick, 395 U.S. 486 (1969)Google Scholar; U.S. v. Nixon, 418 U.S. (1974); and Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983).Google Scholar

53. Veto Message of 10 July 1832, Messages and Papers of the Presidents, ed. Richardson, J. D. (New York: Bureau of National Literature, 1898), 2: 581.Google Scholar Presidents Jefferson, Lincoln, and Franklin D. Roosevelt also argued, albeit with some variations, against the notion that the Court is the final interpreter; see the excellent discussion in Agresto, John, Supreme Court and Constitutional Supremacy (Ithaca: Cornell, 1984), chap. 5;Google Scholar and Murphy, Walter F., “Who Shall Interpret? The Quest for the Ultimate Constitutional Interpreter,” Review of Politics 47 (1986): 401–423CrossRefGoogle Scholar

54. Bates, Edward, Opinion of the Attorney General on the Suspension of the Writ of Habeas Corpus (Washington, D. C.: Government Printing Office, 1861).Google Scholar

55. See Schmitt, Gary J., “Executive Privilege: Presidential Power to Withhold Information from Congress,” in The Presidency in the Constitutional Order, ed. Besette, J. and Tulis, J. (Baton Rouge, LA: Louisiana State University Press, 1981), pp. 154–94, esp. 176–78.Google Scholar Walter F. Murphy usefully emphasizes the importance of patterns of deference to a “modified departmentalist view, see his “Who Shall Interpret.” I have benefited greatly from discussions with Murphy and Jeffrey Tulis on these issues.

56. Bates, Opinion.

57. Bickel, Alexander M., The Least Dangerous Branch (New Haven: Yale Univesity Press, 1986), p. 261.Google Scholar

58. Mcclosey, and Zaller, argue that, “On issues on which the Court has taken a strong libertarian position, community influentials and the politically sophisticated members of the general public are more tolerant than the less sophisticated. On issues on which the Court has not taken a clear libertarian stand, however, elites and the more sophisticated are not consistently more tolerant than the unsophisticated,” pp. 59–60, and see table 2–21.Google Scholar

59. For discussions of the political means of opposing Supreme Court interpretations of the Constitution, see Agresto, chaps. 5 and 6; and Murphy, Walter F. and Pritchett, C. Herman, Courts, Judges, and Politics: An Introduction to the Judicial Process (New York: Random House, 1979), chap. 9Google Scholar; and Barber, , Constitution, pp. 196–220.Google Scholar

60. 60 US. 393 (1857); see Johannsen, Robert W., ed., The Lincoln-Douglas Debates (New York: Oxford, 1965), p. 255.Google Scholar

61. This leads to fears, of course, that judicial activism causes the atrophy of popular self-control by preempting opportunities for the self imposition of constitutional values; see Thayer, James Bradley, John Marshall (Boston: Houghton-Mifflin, 1901), pp. 103–104, 106–107Google Scholar; Felix Frankfurter's opinions in Dennis v. U.S., 341 U.S. 494 (1951), and West Virginia School Board v. Barnette, 319 U.S. 624 (194 and Alexander Bickel, Least Dangerous Branch.

62. See Bessette and Tulis, “The Constitution, Politics, and the Presidency,” in Bessette and Tulis, Presidency in the Constitutional Order.

63. Federalist, No. 52.

64. Federalist, No. 63.

65. Federalist, No. 70.

66. Federalist, No. 78.

67. See the Federalist, nos. 47, 48, and especially 51.

68. Bickel's phrase, see Least Dangerous Branch, chap. 6.

69. Lochner v. New York, 198 U.S. 45 (1905)Google Scholar, the case that gave its name to t era in which the Court extended protections to economic liberty under the due process clause of the 14th Amendment, and struck down various provisions of the New Deal. In a speech on 9 March 1937, President Franklin D. Roosevelt sought to justify his scheme to add several new justices to the Court; Senate Report No. 711, 75th Congress, 1st Sess., pp. 41–44; excerpted in Murphy, and Pritchett, , Courts Judges, and Politics, pp. 376–79.Google Scholar

70. Federalist, No. 84.

71. Most prominent are the extended republic argument of Federalist, No. 10 and the checks and balances argument of No. 51.

72. See Fenno, Richard F. Jr.'sHome Style (Boston: Little, Brown, 1978) which warns against imposing any simple model on the representative activities of House members.Google Scholar

73. Federalist, No. 70.

74. Federalist No. 57.

75. Lincoln-Douglas Debates, p. 304; and see Barber, , Constitution p. 60 and passimGoogle Scholar, from which I draw the theme of the Constitution as aspirational.

76. See Barber, Constitution, chap. 3.

77. Rawls, John, “Justice as Fairness: Political Not Metaphysical,” Philosophy and Public Affairs 14, no. 3 (1985): 223–51Google Scholar; and “Overlapping Consensus,” passim.

78. Nagel, , “Moral Conflict,” pp. 229.Google Scholar

79. John Locke's defense of religious toleration is partly based on a liberal theology, an appeal to conscience, and a defense of toleration as “the chief Characteristical Mark of the True Church,” see A Letter Concerning Toleration, ed. Tilly, James H. (Indianapolis: Hackett, 1983), p. 23.Google Scholar Defenses of liberalism need not on theological grounds, but since liberalism establishes the bounds of acceptable religious practice it cannot avoid taking certain stands on religious questions. Rawls is perfectly aware that liberal principles are pervasive and overriding, Justice, pp. 134–35, and that liberal justice must be at least “partially comprehensive” “Overlapping Consensus,” p. 14, note 23 and accompanying text.

80. Rawls, , “Political not Metaphysical,” p. 247Google Scholar; and see Theory, pp. 47–48 where Rawls notes that the “considered judgments” from which reflective equilibrium proceeds are not just convictions firmly shared in our society, but convictions that seem appropriate because they do not seem to be “influenced by excessive attention to our own interests.”

81. Federalist, No. 1, ed. Rossiter, p. 34; Federalist, No. 37, is another call for moderation based on the difficulty of viewing aright, and securing agreement on, the allocation of government powers between state and national governments.

82. Aristotle, , Politics, trans. Lord, Carnes (Chicago: University of Chicago, 1984), bk. 3, chap. 9, p. 97CrossRefGoogle Scholar; Aristotle's, remarks on the limits of precision and demonstration in ethics are also relevant, Nichomachean Ethics, trans. Ostwald, Martin (Indianapolis: Bobbs-Merrill, 1962), bk. 1, chap. 3 and 5, pp. 5–6, 8–9.Google Scholar

83. I gratefully acknowledge that this discussion of moderation was suggested to me in conversation by my estimable colleague Judith N. Shklar.

84. Aristotle's attempt to accommodate the claims of virtue, wealth, birth, and equality in Book 3 of the Politics is instructive.

85. Mencken, H. L., A Mencken Chrestomathy (New York: Vintage, 1982), p. 163.Google Scholar

86. Rawls, seems to me to go wrong here by positing, in effect, too much distance between founding politics and normal politics; see “Overlapping Consensus,” pp. 19–20.Google Scholar On related themes I have benefited from a fascinating and challenging but unpublished (and to me unconvincing) paper by Stephen Holmes, “Gag Rules or the Politics of Omission.”

87. Part of the justification for freedom in a private sphere might have something to do with the worry that “public” reasons themselves are poor means to describe and appreciate certain aspects of our lives, Nagel, intimates this, The View from Nowhere, pp. 162–63Google Scholar, and “Moral Conflict,” pp. 233–34.

88. Indeed, I am conscious of having said little here about the substance of the best justification of liberalism.

89. The charge, for example, that liberalism embodies a “secular humanist” worldview at odds with the free practice of some religions is raised in debates over state laws mandating “balanced treatment” for “creation science” and evolution, see Edwards v. Aguillard, 107 S.Ct. 2573 (1987).

90. Boorstin, , The Genius of American Politics (Chicago: University of Chicago, 1965), p. 189.Google Scholar

91. Ibid., p. 1.

92. See Purcell, Edward A. Jr. excellent discussion in The Crisis of Democratic Theory (Lexington, Kentucky: University Press of Kentucky, 1973)Google Scholar, chaps. 13 and 14;, showing how the “end of ideology” movement in America became itself an ideological justification for an imperfect status quo.