Document Type

Article

Publication Date

1998

Abstract

Liberalism, both contemporary and classical, rests at heart on a theory of human nature, and at the center of that theory lies one core commitment: all human beings, qua human beings, are essentially rational. There are two equally important implications. The first we might call the "universalist" assumption: all human beings, not just some, are rational -- not just white people, men, freemen, property owners, aristocrats, or citizens, but all of us. In this central, defining respect, then, we are all the same: we all share in this universal, natural, human trait. The second implication, we might call the "individualist" assumption: because each one of us is rational, each one of us is not only competent to, but best-equipped to formulate and act on his or her own individually held conception of the good life. We are each capable of deciding for ourselves what to think, believe, and do within the sphere of self-regarding behavior. We all share in this capacity equally. Whatever may be our otherwise terribly and radically unequal endowments, we share equally the capacity to decide for ourselves what is our own best conception of our individual self, future, and interests.

There can be no doubt that this liberal understanding of our nature, and the wide range and bewildering variety of interpretations of constitutional rights and norms that it undergirds, have prompted moments of very real moral progress over the course of the second half of this century. Surely it is fair to say that the acknowledgment of our universality lying at the heart of so much of Fourteenth Amendment jurisprudence over the last forty years has not only prompted the creation of a more equal and free society, but has also enabled us to at least glimpse the expansive and inclusive community that is equality's natural complement.

There can also be no doubt, however, that these revolutionary, expansive, and liberal changes in our self-understanding have left serious difficulties in their wake, as scores of critics of liberalism and of legal liberalism, in particular, have made clear over the last thirty years or so. I will focus on what strikes me as the two most intractable problems.

Generally, I propose that liberalism fails to take seriously the differences between groups of people, as identity theorists claim, and the interconnections and interdependencies of all of us, as communitarians insist, and that the failure to do so has had a profound and negative effect on our constitutional law and rhetoric. I suggest it has significantly undermined the classic liberal arguments for many of our most vulnerable and controversial contemporary liberal rights and entitlements. Nevertheless, it would be wrong to jettison either the universalist or individualist aspirations of liberalism, or the liberal legal defenses of the vital and embattled rights that tenuously follow from those assumptions. Rather, in theory, a friendly amendment to liberalism's core convictions is needed. Where a group seeking a right is different in some way-for example, differently vulnerable to the harms that flow from sexual assault, or differently committed to child-raising, or differently vulnerable to hate speech-what is needed is a showing that the harms occasioned by sexual assault and hate speech are real and demand a response, or that child-raising is a vital human activity and demands greater communal support. Similarly, where an individual right of self-governance impacts social, intimate, or structural connections between persons, as they almost invariably do, we need to show that the interaction is for the good: that abortion rights strengthen the community and the family despite the severance of the connection between mother and fetus; or that birth control, abortion rights, or same-sex marriages would constitute an improvement in, not a threat to, the bonds of tradition tying our modern institution of family to our history and our larger society.

In the last section of this Essay, I will attempt to apply my friendly amendment to liberal legalism to the current debates swirling around the problem and promise of same-sex marriage. I will argue, in brief, that the more or less standard liberal arguments for gay marriage are flawed in the ways described above.

Publication Citation

25 Fla. St. U. L. Rev. 705 (1998)

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