Constitutionalizing Social Values

[Scaperlanda, Michael A.]

Bobby writes:  "It's very important in criticizing a political or social
philosophy to target the best--not the worst--statement of it.  Unless
the argument is that liberalism must inevitably turn "remarkably
illiberal," the fact that one or two authors who may be self-described
liberals present illiberal theories should be irrelevant to the
appropriate evaluation of liberalism."

 

My response:  It is my contention that a secularist liberalism (one that
privatizes and marginalizes questions of ultimate meaning) must
inevitably turn remarkably illiberal.  While this thesis is more than an
intuition on my part it is not yet a fully developed theory (if it were,
I would be engaged in shamelessly self-promoting a book).  

 

One of liberalisms strong calling cards (as I understand it) is its
desire for a thick conception of liberty and equality (in earlier emails
Bobby has referred to liberty-seeking and equality-seeking citizens).
Yet, a secularist version of liberalism can only have a very thin
conception of the human person (because this relates to ultimate and
foundational questions, which have by the rules of the secularist state
been marginalized and privatized).  My thesis is that in the long-term a
thin conception of the human person is not up to the task of protecting
thick conceptions of a person's liberty or equality.  Liberty and
equality at times will clash, and we must have a rational criteria (or,
alternatively, raw power) to choose between competing claims of equality
and liberty.  And, claims of liberty will clash with one another and we
will need criteria for privileging one person's claim over another.  If
gay marriage is allowed, will we strip an evangelical Christian
apartment owner of her liberty to refuse to rent to a gay couple
preferring instead the gay couple's claim of liberty or equality?  And,
if so, on what grounds?  To change the hypothetical, what if the
evangelical Christian is a law professor who is away on sabbatical and
wants to rent out his house.  Will we deprive him of his liberty
interest in choosing who will sleep in his bed while he is away or will
we deprive the gay couple of their right not to be discriminated against
in finding suitable housing?  A thin conception of the human person
cannot do the work of deciding between these conflicting claims.  And,
as I mentioned in an exchange with Paul, a thin conception of the human
person cannot do the work of deciding who counts as a rights bearing
person (blacks, the unborn, the elderly, the mentally infirm, etc.) and
what counts as a harm justifying restrictions on liberty.

 

My arguments are not fully developed, but I will quote from one noted
philosopher who has lived under two very illiberal regimes.  He says:

"totalitarianism arises out of a denial of truth in the objective sense.
If there is no transcendent truth, in obedience to which man achieves
his full identity, then there is no sure principle for guaranteeing just
relations between people.  Their self-interest as a class, group or
nation would inevitably set them in opposition to one another.  If one
does not acknowledge transcendent truth, then the force of power takes
over, and each person tends to make full use of the means at his
disposal in order to impose his own interests or his own opinion, with
no regard for the rights of others.  People are then respected only to
the extent that they can be exploited for selfish ends.  Thus, the root
of modern totalitarianism is to be found in the denial of the
transcendent dignity of the human person."

 

This passage counsels that a thick conception of the human person is
necessary in order to have a thick conception of liberty.

 

Michael   

 

 

 

-----Original Message-----
From: RJLipkin at aol.com [mailto:RJLipkin at aol.com] 
Sent: Thursday, February 26, 2004 4:15 PM
To: Scaperlanda, Michael A.
Cc: CONLAWPROF at LISTS.UCLA.EDU
Subject: Re: Constitutionalizing Social Values

 

In a message dated 2/26/2004 4:09:41 PM Eastern Standard Time,
mscaperlanda at ou.edu writes:

	but it is a form of liberal totalitarianism.
	Greg has mentioned many other cases where liberalism has turned
	remarkably illiberal.

 

        It's very important in criticizing a political or social
philosophy to target the best--not the worst--statement of it.  Unless
the argument is that liberalism must inevitably turn "remarkably
illiberal," the fact that one or two authors who may be self-described
liberals present illiberal theories should be irrelevant to the
appropriate evaluation of liberalism.

 

Bobby


Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware

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