Some Realism about Constitutional Liberalism

Abstract

James E. Fleming and Linda C. McClain have authored an important and intellectually accessible new book, ORDERED LIBERTY: RIGHTS, RESPONSIBILITIES, AND VIRTUES, that canvasses the communitarian critique of a liberal theory of rights, and responds to its central claims. The book’s arrival is especially well timed given the roiling national debate about the proper reach of government authority, and may offer an important corrective to some of the Constitution-based claims being made in these debates, if not to more general claims about a culture of selfishness. It also debuts at a moment when arguments for and against particular constitutional rights, such as reproductive rights, are gaining momentum. That is, the scope and content of constitutional liberalism are very much at issue, with some seeking more liberty and others favoring less restraint on government power.

The constitutional doctrine they discuss matters, because the doctrine is the framework within which American constitutional liberalism operates. This judge-made law affords government ample power to incentivize virtue, to inculcate values, and even to penalize or criminalize its version of individual “irresponsibility.” In fact, libertarian complaints stem from a sense that the law offers individuals too little protection, not too much. Consequently, the claim that constitutional liberalism has caused the alleged slide in our collective virtue by insisting on “empty toleration” of values and behaviors seems seriously overblown. Little in modern constitutional law or in actual government practice supports a narrow reading of government’s moral authority, or a dichotomous reading of rights versus responsibilities.

Keywords: constitutional interpretation, liberal theory of rights, limits of government power, individual freedoms