Common Good and Common Ground: The Inevitability of Fundamental Disagreement
Never before has the need for staking out common ground seemed more acute: we see the need in politics, in public discourse, in court decisions. With most elements of our political community retreating to greater polarization along many dimensions, the promise of reconciliation that Professors James Fleming and Linda McClain offer is a breath of fresh air. They reach out to the critics of liberalism with an assurance that, at least among liberals, civic republicans, communitarians, and progressives, there is a way to preserve the best of all and reach an approach to constitutional order that appropriately values the individual, the community, and the moral fabric of society. This is a constructive and appealing project.
The book is framed as a response to several charges against liberal theories of rights (p 2). These charges arise primarily from arguments to the effect that the liberalism embodied in the current state of our constitutional system exalts rights over responsibilities, licensing irresponsible and even wrongful conduct and contributing to a decline in civic virtue within the populace. In the garb of a defense, Fleming and McClain reveal that they are somewhat sympathetic to versions of these charges and suggest that liberalism need not succumb to the critiques, if it is adapted properly. As their tantalizing undertaking unfolds, it becomes clear that the book is not really a defense at all. The defensive discussions are illustrative and anecdotal; the responses never quite defeat the charges, or even meet them head-on, but tend rather to deflect them as failing to understand what liberalism ought to be.
This suggests that the authors’ more heartfelt project is the proffering of their own refinement of liberalism, a sort of Liberalism 2.0, if you will, which develops out of these defenses and is named “constitutional liberalism” (p 3). Framed strangely as short addenda nodding at agreement or disagreement with each of the critiques discussed more fully in later chapters (pp 53, 81, 113, 148, 178–79), the tenets of constitutional liberalism itself do not appear as a freestanding statement of the theory or its justifications. So we are left to piece it together from discrete observations on a whole array of different topics covered by the critiques and falling, quite comprehensively, under a heading of liberalism that appears to encompass social theory, social culture, political philosophy, constitutional theory, and constitutional doctrine. That is a great deal to join together.
The step that Fleming and McClain take is a brave one. In the past, Fleming has written from a decidedly liberal perspective on constitutional theory, emphasizing autonomy as the core of what government must secure for its people; McClain has offered a feminist perspective on the roles of nongovernmental institutions in matters of family and other private spheres. Fleming’s domain has been primarily, though not entirely, constitutional; McClain’s has been primarily, though not entirely, societal. They chose to cross boundaries to write a book that blends their two sets of theoretical perspectives and their two domains to produce the hybrid of constitutional liberalism. There is much to be learned from this ambitious effort. When it offers a path to reconciliation between conflicting foundational commitments in constitutional law, however, the book promises more than anyone could deliver.
At a high level of generality, the quest is a framework for “taking responsibilities and civic virtues as well as rights seriously” (p 3)—a project for which Professor Robin West called nearly a quarter of a century ago. The theory latent in this intriguing book attempts to meet West’s demand. It very conspicuously presents itself as a reconciliation of liberalism and communitarianism, seeking to preserve the most attractive features of each—rights and responsibilities (pp 46–49). I am a sympathetic traveler on this journey, and whatever aim I take at the project, it is decidedly friendly fire. But the book has left me with the nagging concern that this reconciliation, like so many others in history, is ultimately hollow. As I will elaborate below, the case studies that constitute the volume reveal deep tensions that elude reconciliation at their core. As it turns out, on profound questions of moral conviction, it is difficult to offer compromise solutions that are satisfying to adherents of both camps. We can indeed aspire to areas of what Professor John Rawls called “overlapping consensus,” but that terrain must remain quite thin, not probing too deeply into the disparate fundamental value systems that produce the areas of political consensus. In my view, the project does not avoid the matters of deep conviction sufficiently to aspire to consensus. Indeed, in every one of the case studies, constitutional liberalism has to take sides. And the side it takes is liberalism.