Document Type

Book Review

Publication Date

2013

Abstract

This essay is a review of When the State Speaks, What Should it Say?: How Democracies can Protect Expression and Promote Equality by Corey Brettschneider (2012) and Ordered Liberty: Rights, Responsibilities, and Virtues by James E. Fleming & Linda C. McClain (2013).

In a parallel fashion, Fleming and McClain articulate and then defend a general conception of “constitutional liberalism” and its core individual rights against various critics, including communitarians such as Mary Ann Glendon and Michael Sandel, and “minimalists” such as Cass Sunstein and Jeremy Waldron, who argue that for various reasons those individual rights have undermined either civic society or democratic processes or both. But they too have some sympathy for the criticism, and their defense is likewise quite different from the traditional. Unlike most defenders of liberal constitutionalism, they insist that constitutional liberalism should be explicitly committed to promoting the responsibility of citizens for formulating their own conception of the good and their own theories of justice, which in turn will jointly contribute to responsible democratic and personal self-government. Constitutional liberalism does not undermine civic responsibilities, but it can and should make the grounds of its support of them far more explicit. Accordingly, for Fleming and McClain, various substantive due process rights, such as the right to abortion, the right to marry and to sexual expression, and to educate one’s children, cannot be faulted for creating virtue-free zones of reckless license, so long as it is understood, as the Court has sometimes—but fitfully—tried to do in the dozens of cases it canvases; that those rights are justified, largely or in part, by their tendency not only to protect liberty, but also to form the basis for the development of responsible citizens. These citizens, by virtue of their rights, are more capable of occupying a space in the political order in an informed and responsible way and of formulating and following through on a conception of the good that will guide their own life paths.

Publication Citation

49 Tulsa L. Rev. 393-420 (2013) (reviewing Corey Brettschneider, When the State Speaks, What Should it Say?: How Democracies can Protect Expression and Promote Equality (2012) and James E. Fleming & Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (2013))