Constitutionalizing Social Values

Mark Modak-Truran MModak at mc.edu
Fri Feb 27 16:06:13 PST 2004


To take up Bobby's challenge, consider the problems arising from John
Rawls's account of political liberalism.

             With respect to political liberalism, several critics have
argued against Rawls on the grounds that religious adherents could not
consistently accept his political liberalism.  For example, Patrick Neal
maintains that 

"citizen of faith cannot accept the strong reading of the idea that her
commitment to political liberalism must be wholehearted and firm.  This
reading would insist that the principles of justice characteristic of
political liberalism should take priority over provisions of one's
comprehensive moral or religious view in cases of conflict.  The citizen
of faith could not grant this much authority to political liberalism
without denying the ultimate authority of God."  Patrick Neal,
Political Liberalism, Public Reason, and the Citizen of Faith, in
Natural Law and Public Reason 171, 183 (Robert P. George & Christopher
Wolfe, eds., 2000).  

	A similar problem faces judges who hold comprehensive or
religious doctrines and are told to adjudicate hard cases solely on the
basis of public reason.  Rawls's public reason requires religious
judges to order the political values of public reason in hard cases on
grounds they cannot accept as valid.  When the relevant legal materials
are indeterminate, Rawls maintains that the court must rely on the
political values of public reason to resolve a dispute about
constitutional essentials or matters of basic justice.  Further, Rawls
argues that in order for the political values alone to "give a
reasonable answer to all, or nearly all, questions involving
constitutional essentials and matters of basic justice," the ordering
of values must be made 

"in light of their structure and features within the political
conception itself, and not primarily from how they occur within
citizens' comprehensive doctrines.  Political values are not to be
ordered by viewing them separately and detached from one another or from
any definite context.  They are not puppets manipulated from behind the
scenes by comprehensive doctrines."  John Rawls, The Idea of Public
Reason Revisited, 64 U. Chi. L. Rev. 765, 777 (1997).

	No religious judge, however, could accept this "political not
metaphysical" ordering of political values in hard cases.  A
comprehensive or religious conviction "purports to identify the
necessary and sufficient moral condition or comprehensive condition of
all valid moral claims."  Franklin I. Gamwell, The Meaning of
Religious Freedom: Modern Politics and Democratic Resolution 71(1995). 
Thus, for the religious judge, an ordering of political values is valid
only if it coincides with the ordering dictated by her comprehensive or
religious convictions.  Yet, Rawls's political liberalism maintains
that the political values of public reason must be ordered exclusively
by a "political not metaphysical" conception of justice
(freestanding) even in hard cases.  In other words, this requires that
every religious adherent reject their claim that his or her
comprehensive conviction is valid or reject that it is the
"comprehensive condition of all valid moral claims."  Only those
judges who deny all comprehensive convictions (i.e., believe that
political values are  independent of any particular answer to the
comprehensive question) could accept Rawls "political not
metaphysical" ordering of political values in hard cases.  As a
result, it is not clear how a liberal political conception of justice
(political values of public reason) could be the subject of an
overlapping consensus of reasonable comprehensive doctrines that Rawls
claims is required for a stable society.  Either the acceptance of the
exclusive political ordering of the political values is a mere modus
vivendi and inherently unstable, or no consensus is possible and there
are a plurality of orderings of the political values informing the law
as proposed by the religionist-separationist model of judicial decision
making.  

Mark


Mark Modak-Truran, J.D., Ph.D.
Associate Professor of Law
Mississippi College School of Law
151 East Griffith Street 
Jackson, MS 39201
(601) 925-7159

mmodak at mc.edu

>>> "Scaperlanda, Michael A." <mscaperlanda at ou.edu> 2/27/2004 1:01:07
PM >>>
 

 

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



More information about the Conlawprof mailing list