The domain of civic virtue in a good society: Families, schools, and sex equality

Fordham Law Review

Volumn 69, Issue 5, 2001, Pages 1617-1664

  McClain, Linda C ^a  

^a NONE

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EID: 0035593978     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (221)

1. On the close link between the health of families and national health, and the problem of negative externalities arising from failing families, I have in mind claims in some prominent literature calling for a renewal, or revival, of civil society. See infra Parts II.A and III.A.
2. See Linda K. Kerber, No Constitutional Right to be Ladies (1998) [hereinafter Kerber, No Constitutional Right]; Linda K. Kerber, Women of the Republic (1980).
3. See Linda K. Kerber, No Constitutional Right to be Ladies (1998) [hereinafter Kerber, No Constitutional Right]; Linda K. Kerber, Women of the Republic (1980).
4. See infra Part II.B.
5. Susan Moller Okin, Justice, Gender, and The Family 170-71 (1989) [hereinafter Okin, Justice]; see infra Part III.B.
6. See Linda C. McClain, Toward a Formative Project of Securing Freedom and Equality, 85 Cornell L. Rev. 1221 (2000); Linda C. McClain & James E. Fleming, Some Questions for Civil Society-Revivalists, 75 Chi.-Kent L. Rev. 301 (2000); Linda C. McClain, Toleration, Autonomy, and Governmental Promotion of Good Lives: Beyond "Empty" Toleration to Toleration as Respect, 59 Ohio St. L.J. 19 (1998) [hereinafter Toleration]. Although Michael Sandel is not the only political theorist to employ the term "formative project," he helpfully refers to such a project or a "formative politics" as one that "cultivates in citizens the qualities of character self- government requires." Michael J. Sandel, Democracy's Discontent 6, 321-24 (1996).
7. See Linda C. McClain, Toward a Formative Project of Securing Freedom and Equality, 85 Cornell L. Rev. 1221 (2000); Linda C. McClain & James E. Fleming, Some Questions for Civil Society-Revivalists, 75 Chi.-Kent L. Rev. 301 (2000); Linda C. McClain, Toleration, Autonomy, and Governmental Promotion of Good Lives: Beyond "Empty" Toleration to Toleration as Respect, 59 Ohio St. L.J. 19 (1998) [hereinafter Toleration]. Although Michael Sandel is not the only political theorist to employ the term "formative project," he helpfully refers to such a project or a "formative politics" as one that "cultivates in citizens the qualities of character self- government requires." Michael J. Sandel, Democracy's Discontent 6, 321-24 (1996).
8. See Linda C. McClain, Toward a Formative Project of Securing Freedom and Equality, 85 Cornell L. Rev. 1221 (2000); Linda C. McClain & James E. Fleming, Some Questions for Civil Society-Revivalists, 75 Chi.-Kent L. Rev. 301 (2000); Linda C. McClain, Toleration, Autonomy, and Governmental Promotion of Good Lives: Beyond "Empty" Toleration to Toleration as Respect, 59 Ohio St. L.J. 19 (1998) [hereinafter Toleration]. Although Michael Sandel is not the only political theorist to employ the term "formative project," he helpfully refers to such a project or a "formative politics" as one that "cultivates in citizens the qualities of character self-government requires." Michael J. Sandel, Democracy's Discontent 6, 321-24 (1996).
9. See Linda C. McClain, Toward a Formative Project of Securing Freedom and Equality, 85 Cornell L. Rev. 1221 (2000); Linda C. McClain & James E. Fleming, Some Questions for Civil Society-Revivalists, 75 Chi.-Kent L. Rev. 301 (2000); Linda C. McClain, Toleration, Autonomy, and Governmental Promotion of Good Lives: Beyond "Empty" Toleration to Toleration as Respect, 59 Ohio St. L.J. 19 (1998) [hereinafter Toleration]. Although Michael Sandel is not the only political theorist to employ the term "formative project," he helpfully refers to such a project or a "formative politics" as one that "cultivates in citizens the qualities of character self- government requires." Michael J. Sandel, Democracy's Discontent 6, 321-24 (1996).
10. I am grateful to Steve Schiffrin for bringing up this point in a discussion about government's formative project.
11. When I use this two-fold distinction, I am drawing upon John Rawls' idea of persons having two moral powers, one pertaining to democratic self-government, or the capacity for a conception of justice and one to personal self-government, or the capacity for a conception of the good. John Rawls, Political Liberalism 19 (1993) [hereinafter Rawls, Political Liberalism]. I believe that this is a useful schematic, but that, in light of cogent feminist critique of political liberalism, a more adequate conception of moral powers would add to this schematic a moral power pertaining to the capacity to form and participate in human relationships, participate in civil society, and to give and receive care. See Eva Fedar Kittay, Love's Labor (1999); Okin, Justice, supra note 4, at 106-08.
12. When I use this two-fold distinction, I am drawing upon John Rawls' idea of persons having two moral powers, one pertaining to democratic self-government, or the capacity for a conception of justice and one to personal self-government, or the capacity for a conception of the good. John Rawls, Political Liberalism 19 (1993) [hereinafter Rawls, Political Liberalism]. I believe that this is a useful schematic, but that, in light of cogent feminist critique of political liberalism, a more adequate conception of moral powers would add to this schematic a moral power pertaining to the capacity to form and participate in human relationships, participate in civil society, and to give and receive care. See Eva Fedar Kittay, Love's Labor (1999); Okin, Justice, supra note 4, at 106-08.
13. In the text, I am most concerned that blurring any distinction would seem to require too much congruence between government and civil society. Another reason for holding onto this distinction, which I will not explore here, is that affording a place for personal self-government emphasizes the importance of personal autonomy and may ward off attempts to disavow it or subsume it under democratic self-government. Of course, autonomy is relevant to both forms of self-government, but some accounts of self-government (e.g., Michael Sandel's in Sandel, supra note 5) seem to devalue autonomy in the domain of personal self-government. For elaboration, see James E. Fleming and Linda C. McClain, In Search of a Substantive Republic, 76 Texas L. Rev. 509 (1997) (book review) (discussing Sandel's civic republicanism).
14. See Webster's Ninth New Collegiate Dictionary 1062 (1987) (defining seedbed as "(2) a place or source of growth or development").
15. See, e.g., Council on Civil Society, A Call to Civil Society: Why Democracy Needs Moral Truths 18 (1998) [hereinafter A Call to Civil Society]; Nat'l Comm'n on Civic Renewal, A Nation of Spectators: How Civic Disengagement Weakens America and What We Can Do About It 13 (1998) [hereinafter A Nation of Spectators]. As I have explained my approach elsewhere, I support a more pluralistic approach to family policy, which would focus less on form and more on family dynamics and how to help different kinds of families serve the important functions they have in our constitutional democracy. Also, feminist work on family form and on gender roles within families has offered good reasons to be skeptical about appeals to preserving traditional families. Finally, whether families have the resources to fulfill their responsibilities depends upon baseline questions of what level of governmental and societal support for families exists. See McClain & Fleming, supra note 5, at 335 n.166 and accompanying text.
16. See, e.g., Council on Civil Society, A Call to Civil Society: Why Democracy Needs Moral Truths 18 (1998) [hereinafter A Call to Civil Society]; Nat'l Comm'n on Civic Renewal, A Nation of Spectators: How Civic Disengagement Weakens America and What We Can Do About It 13 (1998) [hereinafter A Nation of Spectators]. As I have explained my approach elsewhere, I support a more pluralistic approach to family policy, which would focus less on form and more on family dynamics and how to help different kinds of families serve the important functions they have in our constitutional democracy. Also, feminist work on family form and on gender roles within families has offered good reasons to be skeptical about appeals to preserving traditional families. Finally, whether families have the resources to fulfill their responsibilities depends upon baseline questions of what level of governmental and societal support for families exists. See McClain & Fleming, supra note 5, at 335 n.166 and accompanying text.
17. Nancy L. Rosenblum, Membership and Morals 4 (1998) (defining "congruence"). Rosenblum's excellent book does not address congruence in the context of families.
18. Id. at 41. Rosenblum notes that this is a "more capacious approach to the moral uses of association than the logic of congruence," because "[t]he business of instilling habits of responsibility, reciprocity, cooperation, or trust is compatible with a variety of political orientations and substantive values." Id. at 42.
19. See infra Part II.B and IV.B.2.
20. See Okin, Justice, supra note 4, at 16-21, 74-85; infra Part III.B.2.
21. I am borrowing the idea of "sovereign virtue" from Ronald Dworkin's recent book, Sovereign Virtue, in which he argues that equality, in the form of "equal concern" on the part of government for all its citizens, is the "sovereign virtue" of political community, without which government is not legitimate. See Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality 1-2 (2000). Dworkin's subject is not sex equality, but material equality, or equality of resources.
22. United States v. Virginia, 518 U.S. 515, 524 (1996) (quoting Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982)).
23. Sandel, supra note 5, at 25 (republican theory "seeks . . . to cultivate in citizens the qualities of character necessary to the common good of self-government.").
24. Stephen Macedo, Diversity and Distrust 10 (2000).
25. Richard Dagger, Civic Virtues 13 (1997).
26. The Role of Civic Education: A Report of the Task Force on Civic Education (Center for Civic Education, prepared for Second Annual White House Conference on Character Building for a Democratic, Civil Society, May 19-20, 1995) [hereinafter The Role of Civic Education].
27. Rawls, Political Liberalism, supra note 7, at 194-95.
28. Id.
29. See id. at 194. Even though William Galston's account of liberal virtues articulates a closer relationship between the good citizen and the good person than does Rawls, Galston wishes to hold onto a distinction between a "limited conception of liberal public purposes"-i.e., of the appropriate domain of civic ends-and a more robust account of liberal virtues that would threaten world views or ways of life that reject key liberal ideals, such as critical reflection. William A. Galston, Liberal Purposes 153-54 (1991).
30. See Center for Civic Education, et al., CIVITAS: A Framework for Civic Education (1991) [hereinafter CIVITAS] (noting that "civic virtue is distinct from those virtues that are relevant to private or personal lives").
31. In Political Liberalism, Rawls uses a set of primary social goods, which includes rights and liberties, powers and opportunities, income and wealth, to express the things citizens need to be free and equal persons. This list then serves as a source of appropriate claims by citizens and allows citizens the means to advance their conceptions of the good. Rawls, Political Liberalism, supra note 7, at 187. Here, as with moral powers, I believe that Rawls' account of primary goods is a helpful way to begin thinking about government's formative project, but some additions to this list are needed: for example, the caretaking necessary to foster human capacity for responsible self-government, connection, and community, and the freedom from violence and exploitation. See Kittay, supra note 7; Okin, Justice, supra note 4.
32. In Political Liberalism, Rawls uses a set of primary social goods, which includes rights and liberties, powers and opportunities, income and wealth, to express the things citizens need to be free and equal persons. This list then serves as a source of appropriate claims by citizens and allows citizens the means to advance their conceptions of the good. Rawls, Political Liberalism, supra note 7, at 187. Here, as with moral powers, I believe that Rawls' account of primary goods is a helpful way to begin thinking about government's formative project, but some additions to this list are needed: for example, the caretaking necessary to foster human capacity for responsible self-government, connection, and community, and the freedom from violence and exploitation. See Kittay, supra note 7; Okin, Justice, supra note 4.
33. Rawls, Political Liberalism, supra note 7, at 14.
34. John Rawls, A Theory of Justice 440-42 (1971).
35. John Rawls, The Idea of Public Reason Revisited, 64 U. Chi. L. Rev. 765, 788 (1997) [hereinafter Rawls, Public Reason Revisited].
36. Rosenblum refers to this assumption about the effects of associational life as Rawls' "liberal expectancy." Rosenblum, supra note 11, at 51-53.
37. The Federalist No. 55, at 346 (James Madison) (Clinton Rosssiter ed., 1961); A Call to Civil Society, supra note 10, at 7 (quoting Federalist No. 55); see also Mary Ann Glendon, Rights Talk 116 (1991) (quoting and discussing Federalist No. 55).
38. The Federalist No. 55, at 346 (James Madison) (Clinton Rosssiter ed., 1961); A Call to Civil Society, supra note 10, at 7 (quoting Federalist No. 55); see also Mary Ann Glendon, Rights Talk 116 (1991) (quoting and discussing Federalist No. 55).
39. A Call to Civil Society, supra note 10, at 7.
40. Id. at 6. However, even though they extol non-governmental institutions such as families and religious institutions as "seedbeds," revivalists generally advocate that such institutions as schools engage in civic education and recognize local government as an important potential seedbed.
41. A Call to Civil Society, supra note 10, at 16. This is, to be sure, a fairly thick account of civic virtue, one that insists upon a foundation for democracy in a "public moral philosophy" of "a larger set of shared ideas about human virtue and the common good," moral truths, that are "in large part biblical and religious" and that make self-governance possible. Id. at 12-14. Elsewhere, I critique this thick account and argue that an approach more akin to political liberalism is better suited to a constitutional democracy characterized by reasonable moral pluralism. McClain & Fleming, supra note 5, at 322-26.
42. A Call to Civil Society, supra note 10, at 7; see also Seedbeds of Virtue: Sources of Competence, Character, and Citizenship in American Society (Mary Ann Glendon & David Blankenhorn eds., 1995) [hereinafter Seedbeds of Virtue] (linking fate of American democracy to health of families as "seedbeds of virtue").
43. A Call To Civil Society, supra note 10, at 18; see also Seedbeds of Virtue, supra note 34, at 3 ("[T]he simultaneous weakening of child-raising families and their surrounding and supporting institutions constitutes our culture's most serious long-term problem.").
44. Religious institutions "foster values that are essential to human flourishing and to democratic civil society: personal responsibility, respect for moral law, and neighbor-love, or concern for others." A Call To Civil Society, supra note 10, at 8.
45. In a "self-governing" society, schools are to teach "basic standards of good conduct: personal responsibility, respect for teachers' authority, and respect for other students." Id. at 10. There is, under the rubric of teaching "civic literacy," a component that seems less obviously tied to personal self-government: students are to be taught "knowledge of their country's constitutional heritage, respect for the lives of national heroes, including great dissidents, a comprehension of what good citizenship is, and an appreciation of their society's civic and moral ideals." Id.; see also A Nation of Spectators, supra note 10, at 14 (advocating that schools should reorganize their internal life to "reinforce basic civic virtues such as personal and social responsibility" and instruct in civic knowledge and skills and encourage community work).
46. A Call To Civil Society, supra note 10, at 10.
47. Id. at 5.
48. A Nation of Spectators, supra note 10, at 6-7, 12. The passage continues: "We need tolerance and commitment; and especially in moments of challenge, we need the capacity for sacrifice." Id. at 12. A variant on the civil society thesis is that political liberalism, if it is to honor its respect for reasonable moral pluralism, requires a modest governmental agenda, one that leaves the inculcation of civic virtue to the institutions of civil society because any governmental attempt directly to foster civic virtue would be an inappropriate imposition of a public orthodoxy that would destroy genuine pluralism and diversity. Michael W. McConnell, The New Establishmentarianism, 75 Chi.-Kent L. Rev. 453, 455-56, 469 (2000).
49. To highlight just a few of the numerous articulations of this idea in Macedo's book, see, e.g., Stephen Macedo, Liberal Virtues 265 (1990) ("[P]ublic values penetrate and partly constitute private relations . . . . Liberal political norms have a private life: they help shape and structure the private lives of liberal citizens. To a greater extent than liberals usually allow, freedom is a way of life."); id. at 272 ("The same virtues that contribute to individual flourishing in pluralistic liberal communities also contribute to the performance of liberal civic duties, the liberal virtues are both civic and personal virtues.").
50. Macedo, supra note 18, at 8-12.
51. Id. at 239.
52. Id. at 10-11.
53. Id. at 144, 168.
54. Id. at 233.
55. See Rawls, Public Reason Revisited, supra note 28, at 788-94; see also infra text accompanying notes 106-13, 119-32.
56. This is a point that I have discussed elsewhere. See McClain & Fleming, supra note 5, at 329-30.
57. Macedo, supra note 18, at 233.
58. See, e.g., The Role of Civic Education, supra note 20, at 4, 8; CIVITAS, supra note 24, at 3-8; Rosemary C. Salomone, Visions of Schooling 228-34 (2000); Symposium: Civics Education and America's Founding Documents, 175 J. Educ. 5-129 (1993) (addressing themes pertaining to the work and mission of The National Center for America's Founding Documents, whose primary aim is to promote education in the schools by encouraging "civic literacy").
59. See, e.g., The Role of Civic Education, supra note 20, at 4, 8; CIVITAS, supra note 24, at 3-8; Rosemary C. Salomone, Visions of Schooling 228-34 (2000); Symposium: Civics Education and America's Founding Documents, 175 J. Educ. 5-129 (1993) (addressing themes pertaining to the work and mission of The National Center for America's Founding Documents, whose primary aim is to promote education in the schools by encouraging "civic literacy").
60. One illustrative example, discussed in text infra, is CIVITAS, supra note 24. See also Fostering Civic Virtue: Character Education in the Social Studies, Soc. Stud. Rev., Fall/Winter 1997, at 23 (position statement of the National Council for the Social Studies). This position statement by NCSS mentions "equality" (once) as a fundamental value, notes that teachers' position should be that "while there have been failures in our nation's attempt to live according to democratic ideals, there is a common tradition worth transmitting to the next generation," but makes no explicit reference to the idea of dissident citizenship or how that struggle might be part of civic virtue. Id. at 25. Stephen Macedo's otherwise excellent book, Liberal Virtues, supra note 41, has little explicit discussion of sex equality. One notable counterexample is Toni Marie Massaro, Constitutional Literacy: A Core Curriculum for a Multicultural Nation 116-21, 128-53 (1993).
61. One illustrative example, discussed in text infra, is CIVITAS, supra note 24. See also Fostering Civic Virtue: Character Education in the Social Studies, Soc. Stud. Rev., Fall/Winter 1997, at 23 (position statement of the National Council for the Social Studies). This position statement by NCSS mentions "equality" (once) as a fundamental value, notes that teachers' position should be that "while there have been failures in our nation's attempt to live according to democratic ideals, there is a common tradition worth transmitting to the next generation," but makes no explicit reference to the idea of dissident citizenship or how that struggle might be part of civic virtue. Id. at 25. Stephen Macedo's otherwise excellent book, Liberal Virtues, supra note 41, has little explicit discussion of sex equality. One notable counterexample is Toni Marie Massaro, Constitutional Literacy: A Core Curriculum for a Multicultural Nation 116-21, 128-53 (1993).
62. See, e.g., Macedo, supra note 41, at 259; Dagger, supra note 19, at 196.
63. See Reva B. Siegel, Collective Memory and the Nineteenth Amendment: Reasoning about "the Woman Question" in the Discourse of Sex Discrimination, in History, Memory, and the Law 131 (Austin Sarat & Thomas R. Kearns eds., 1999).
64. Kerber, No Constitutional Right, supra note 2, at 8-11.
65. Id. at 161-85 (discussing Hoyt v. Florida, 368 U.S. 57 (1961), where the Supreme Court upheld women's exclusion from jury service because of their "special responsibilities" for home life). The use of the modified "most" in the text refers to women's exclusion from registration for the military draft (Rostker v. Goldberg, 453 U.S. 57 (1981)), although women are actively enrolled in all branches of military service.
66. See Holloway Sparks, Dissident Citizenship: Democratic Theory, Political Courage, and Activist Women, 12 Hypatia, Fall 1997, at 74, 75 ("Dissident citizenship . . . encompasses the often creative oppositional practices of citizens who, either by choice or (much more commonly) by forced exclusion from the institutionalized means of opposition, contest current arrangements of power from the margins of the polity.").
67. See David A.J. Richards, Women, Gays, and the Constitution 224-33 (1998); Jill Elaine Hasday, Contest and Consent: A Legal History of Marital Rape, 88 Cal. L. Rev. 1373 (2000); Siegel, supra note 53.
68. See David A.J. Richards, Women, Gays, and the Constitution 224-33 (1998); Jill Elaine Hasday, Contest and Consent: A Legal History of Marital Rape, 88 Cal. L. Rev. 1373 (2000); Siegel, supra note 53.
69. CIVITAS, supra note 24, at 93. Christina Hoff Sommers, author of the controversial book Who Stole Feminism? How Women Have Betrayed Women (1994), is identified as an author of this section of CIVITAS. Id. at x.
70. Id. at 258-77.
71. Id.
72. Id. at 262 (discussing briefly coverture and domestic violence).
73. Id. at 258.
74. Id. at 273.
75. Id. at 276.
76. Siegel, supra note 53, at 131-32.
77. Id. at 181-82; 173-74.
78. Id. at 178 (discussing United States v. Virginia, 518 U.S. 515 (1996)).
79. Planned Parenthood v. Casey, 505 U.S. 833-98 (1992) (stating that contemporary constitutional norms of individual liberty and privacy preclude husbands from exercising the kind of control over wives that characterized earlier understandings of marriage). Thus, Linda Kerber invokes the Court's repudiation of the patriarchal marriage relation in Casey as "the moment when coverture, as a living legal principle, died." Kerber, No Constitutional Right, supra note 2, at 307; see also Kirchberg v. Feenstra, 450 U.S. 455 (1981) (striking down Louisiana community property law treating husband as "head and master" of property jointly owned with wife).
80. Violence Against Women Act of 1994, 42 U.S.C. §§ 13931-14040 (1994).
81. United States v. Morrison, 120 S. Ct. 1740, 1754 (2000).
82. Massaro, supra note 51, at 140-41. I view Massaro's approach as different from that of CIVITAS, discussed in text accompanying notes 63-64, which expresses ambivalence about the idea of equality itself.
83. Although I differ with some of her conclusions about the scope of the value of sex equality, I have found helpful Rosemary Salomone's argument that schools should teach "common values" or "core values" and her appeal to such sources as constitutional and statutory law to discern those values. Salomone, supra note 50, at 231-40. She defines "core values" as "so central to the preservation of democratic government and so basic to the constitutional enterprise that they do not lend themselves to governmental exemption." Id. at 239. She derives this "core" from "common history and folklore," from "legal norms established in the federal Constitution as interpreted by the Supreme Court, from federal statutes with supporting administrative regulations, and from executive orders. Taken together, these legal pronouncements represent a statement of national consensus." Id. at 233.
84. I am, for example, thinking of the claims about the harmful effects of prevailing socialization about gender-which perpetuates certain forms of sex inequality-for both female and male children made in such best-selling books as Reviving Ophelia and Raising Cain. See Dan Kindlon & Michael Thompson, Raising Cain: Protecting the Emotional Life of Boys (1999); Mary Pipher, Reviving Ophelia: Saving the Selves of Adolescent Girls (1994).
85. I am, for example, thinking of the claims about the harmful effects of prevailing socialization about gender-which perpetuates certain forms of sex inequality-for both female and male children made in such best-selling books as Reviving Ophelia and Raising Cain. See Dan Kindlon & Michael Thompson, Raising Cain: Protecting the Emotional Life of Boys (1999); Mary Pipher, Reviving Ophelia: Saving the Selves of Adolescent Girls (1994).
86. Salomone, supra note 50, at 236-37.
87. CIVITAS, supra note 24, at 273.
88. See, e.g., Kirchberg v. Feenstra, 450 U.S. 455 (1981) (striking down Louisiana community property law treating husband as "head and master" of property jointly owned with wife).
89. Orr v. Orr, 440 U.S. 268, 279 n.9 (1979). The Court also noted the risk that legislative classifications distributing benefits and burdens on the basis of gender will reinforce "stereotypes about the 'proper place' of women and their need for special protection." Id. at 283.
90. Stanton v. Stanton, 421 U.S. 7, 14-15 (1975) (striking down sex-based classification requiring child support for longer period for male children than for female children); see also Orr, 440 U.S. at 280 (quoting same language; striking down sex-based classification requiring husbands, but not wives, to pay alimony). For a discussion of the import of these precedents, see Mary Ann Case, Response to Kathleen Sullivan's Constitutionalizing Women's Equality, Cal. L. Rev. (forthcoming 2001).
91. Stanton v. Stanton, 421 U.S. 7, 14-15 (1975) (striking down sex-based classification requiring child support for longer period for male children than for female children); see also Orr, 440 U.S. at 280 (quoting same language; striking down sex-based classification requiring husbands, but not wives, to pay alimony). For a discussion of the import of these precedents, see Mary Ann Case, Response to Kathleen Sullivan's Constitutionalizing Women's Equality, Cal. L. Rev. (forthcoming 2001).
92. Laurence H. Tribe, American Constitutional Law 1565 (2d ed. 1988) (footnotes omitted).
93. See Abner S. Greene, Civil Society and Multiple Repositories of Power, 75 Chi.-Kent L. Rev. 477 (2000).
94. Press Release, The White House at Work, The Clinton-Gore Administration: Working to Help Families Raise Responsible Teenagers (May 2, 2000) (on file with author).
95. Council of Economic Advisers, Teens and Their Parents in the 21st Century: An Examination of Trends in Teen Behavior and the Role of Parental Involvement 18-23 (2000).
96. Robert D. Putnam, Bowling Alone 100 (2000) (reporting that "[t]he fraction of married Americans who say 'definitely' that 'our whole family usually eats dinner together' has declined by a third over the last twenty years, from about 50 percent to 34 percent").
97. Id. at 227 (reporting that "[r]oughly half of all Americans-married and single, parents and childless-report watching television while eating dinner, and nearly one-third do so during breakfast and lunch").
98. Glendon, supra note 30, at 174. I have to confess that in earlier work I have been skeptical about the potential of table talk to foster democratic self-government. McClain & Fleming, supra note 5, at 311.
99. See Counsel of Economic Advisers, supra note 82, at 18-23. In the same way, I would argue that community-based programs that help to empower disadvantaged adolescent females to invest in their education and to defer pregnancy and motherhood cultivate those young women's general capacities for democratic and personal self-government.
100. David Popenoe, The Roots of Declining Social Virtue: Family, Community, and the Need for a "Natural Communities Policy," in Seedbeds of Virtue, supra note 34, at 71, 74-79 (summarizing social science research about the importance of emotional attachment to successful child development).
101. Dennis R. Papini, Family Interventions, in Interventions for Adolescent Identity Development 47, 52 (Sally L. Archer ed., 1994).
102. Putnam, supra note 83, at 134.
103. See, e.g., Dagger, supra note 19, at 197 ("The virtuous citizen has a strong sense of reciprocity-of the need to bear a fair share of the burdens of a cooperative enterprise and to insist that others bear their share as well.").
104. Ruthellen Josselson, Finding Herself 65 (1987) (describing the family characteristics of women in the "Identity Foreclosure" category).
105. See Putnam, supra note 83, at 22-23.
106. President Bush's proposed budget includes $64 million to promote "responsible fatherhood" through providing competitive grants to faith-based and community based organizations. Tommy G. Thompson, Testimony, Health and Human Service's Fiscal 2002 Budget (Federal Document Clearing House), Mar. 6 2001. Such funds "will be used to support programs that help low-income and unemployment fathers and their families to avoid dependence on welfare, and to fund programs that promote successful parenting and marriage." Id. (testimony of Thompson). Members of Congress plan to reintroduce the Responsible Fatherhood Act, which was passed by the House of Representatives during the last Congress but not enacted. See Fatherhood Efforts Get Historic Boost from Congress (Evan Bayh News Release) at http://www.senate.gov\~bayh\Press\2000\19DEC00pr.htm. Former Vice President Gore has been a champion of "responsible fatherhood" as the next phase of welfare reform. See Al Gore Proposes Next Step in Welfare Reform: Help for Responsible Parents, Crackdown on Deadbeat Dads, available at http://www.algore2000.com/briefingroom/releases/pr.102099.welfare.reform.html. Nearly every state has a task force on responsible fatherhood. See National Center for Children in Poverty, Map and Track: State Initiatives to Encourage Responsible Fatherhood, 1999 Edition, available at http://cpmcnet.columbia.edu/dept/nccp/ MT99text.html.
107. President Bush's proposed budget includes $64 million to promote "responsible fatherhood" through providing competitive grants to faith-based and community based organizations. Tommy G. Thompson, Testimony, Health and Human Service's Fiscal 2002 Budget (Federal Document Clearing House), Mar. 6 2001. Such funds "will be used to support programs that help low-income and unemployment fathers and their families to avoid dependence on welfare, and to fund programs that promote successful parenting and marriage." Id. (testimony of Thompson). Members of Congress plan to reintroduce the Responsible Fatherhood Act, which was passed by the House of Representatives during the last Congress but not enacted. See Fatherhood Efforts Get Historic Boost from Congress (Evan Bayh News Release) at http://www.senate.gov\∼bayh\Press\2000\19DEC00pr.htm. Former Vice President Gore has been a champion of "responsible fatherhood" as the next phase of welfare reform. See Al Gore Proposes Next Step in Welfare Reform: Help for Responsible Parents, Crackdown on Deadbeat Dads, available at http://www.algore2000.com/briefingroom/releases/pr.102099.welfare.reform.html. Nearly every state has a task force on responsible fatherhood. See National Center for Children in Poverty, Map and Track: State Initiatives to Encourage Responsible Fatherhood, 1999 Edition, available at http://cpmcnet.columbia.edu/dept/nccp/ MT99text.html.
108. President Bush's proposed budget includes $64 million to promote "responsible fatherhood" through providing competitive grants to faith-based and community based organizations. Tommy G. Thompson, Testimony, Health and Human Service's Fiscal 2002 Budget (Federal Document Clearing House), Mar. 6 2001. Such funds "will be used to support programs that help low-income and unemployment fathers and their families to avoid dependence on welfare, and to fund programs that promote successful parenting and marriage." Id. (testimony of Thompson). Members of Congress plan to reintroduce the Responsible Fatherhood Act, which was passed by the House of Representatives during the last Congress but not enacted. See Fatherhood Efforts Get Historic Boost from Congress (Evan Bayh News Release) at http://www.senate.gov\∼bayh\Press\2000\19DEC00pr.htm. Former Vice President Gore has been a champion of "responsible fatherhood" as the next phase of welfare reform. See Al Gore Proposes Next Step in Welfare Reform: Help for Responsible Parents, Crackdown on Deadbeat Dads, available at http://www.algore2000.com/briefingroom/releases/pr.102099.welfare.reform.html. Nearly every state has a task force on responsible fatherhood. See National Center for Children in Poverty, Map and Track: State Initiatives to Encourage Responsible Fatherhood, 1999 Edition, available at http://cpmcnet.columbia.edu/dept/nccp/ MT99text.html.
109. President Bush's proposed budget includes $64 million to promote "responsible fatherhood" through providing competitive grants to faith-based and community based organizations. Tommy G. Thompson, Testimony, Health and Human Service's Fiscal 2002 Budget (Federal Document Clearing House), Mar. 6 2001. Such funds "will be used to support programs that help low-income and unemployment fathers and their families to avoid dependence on welfare, and to fund programs that promote successful parenting and marriage." Id. (testimony of Thompson). Members of Congress plan to reintroduce the Responsible Fatherhood Act, which was passed by the House of Representatives during the last Congress but not enacted. See Fatherhood Efforts Get Historic Boost from Congress (Evan Bayh News Release) at http://www.senate.gov\∼bayh\Press\2000\19DEC00pr.htm. Former Vice President Gore has been a champion of "responsible fatherhood" as the next phase of welfare reform. See Al Gore Proposes Next Step in Welfare Reform: Help for Responsible Parents, Crackdown on Deadbeat Dads, available at http://www.algore2000.com/briefingroom/releases/pr.102099.welfare.reform.html. Nearly every state has a task force on responsible fatherhood. See National Center for Children in Poverty, Map and Track: State Initiatives to Encourage Responsible Fatherhood, 1999 Edition, available at http://cpmcnet.columbia.edu/dept/nccp/ MT99text.html.
110. See Galston, supra note 23, at 221-22 (including independence, which means avoiding "becoming needlessly dependent on others," and law-abidingness among "liberal virtues"); The Role of Civic Education, supra note 20, at 6-7 (advocating that civic education develop dispositions such as self-discipline, so that citizens adhere voluntarily to self-imposed standards of behavior rather than requiring the imposition of external controls). Recent political rhetoric of supporting "working families" suggests that some degree of governmental support is appropriate, so long as families "play by the rules" and make an effort to support themselves. Elsewhere I suggest that this rhetoric has the potential to open the door to a more robust and sustained focus upon the role of care in fostering human and social capital. See Linda C. McClain, Citizenship Begins at Home: Building Support for Working Families into the New Social Contract of Supporting 'Working Families,' in Progressive Politics in the Global Age (Henry Tam ed., forthcoming 2001) [hereinafter McClain, Citizenship].
111. Rawls, Public Reason Revisited, supra note 28, at 788.
112. This is an argument that I advance elsewhere, drawing on a range of feminist, liberal and progressive work. See Linda C. McClain, Care as a Public Value: Linking Responsibility, Resources, and Republicanism, 77 Chi.-Kent. L. Rev. (forthcoming 2001); McClain, Citizenship, supra note 94. For important arguments to recognize care as a public value, on which I draw, see Mona Harrington, Care and Equality: Inventing a New Family Politics (1999); Kittay, supra note 7, at 115-81; Martha Albertson Fineman, Cracking the Foundational Myths: Independence, Autonomy, and Self-Sufficiency, 8 Am. U. J. Gender, Soc. Pol'y & L. 13 (2000); Deborah Stone, Why We Need A Care Movement, The Nation, Mar. 13, 2000, at 13; see also in the present symposium Mary Becker, Towards a Progressive Politics and a Progressive Constitution, 69 Fordham L. Rev. 2007 (2001).
113. This is an argument that I advance elsewhere, drawing on a range of feminist, liberal and progressive work. See Linda C. McClain, Care as a Public Value: Linking Responsibility, Resources, and Republicanism, 77 Chi.-Kent. L. Rev. (forthcoming 2001); McClain, Citizenship, supra note 94. For important arguments to recognize care as a public value, on which I draw, see Mona Harrington, Care and Equality: Inventing a New Family Politics (1999); Kittay, supra note 7, at 115-81; Martha Albertson Fineman, Cracking the Foundational Myths: Independence, Autonomy, and Self-Sufficiency, 8 Am. U. J. Gender, Soc. Pol'y & L. 13 (2000); Deborah Stone, Why We Need A Care Movement, The Nation, Mar. 13, 2000, at 13; see also in the present symposium Mary Becker, Towards a Progressive Politics and a Progressive Constitution, 69 Fordham L. Rev. 2007 (2001).
114. This is an argument that I advance elsewhere, drawing on a range of feminist, liberal and progressive work. See Linda C. McClain, Care as a Public Value: Linking Responsibility, Resources, and Republicanism, 77 Chi.-Kent. L. Rev. (forthcoming 2001); McClain, Citizenship, supra note 94. For important arguments to recognize care as a public value, on which I draw, see Mona Harrington, Care and Equality: Inventing a New Family Politics (1999); Kittay, supra note 7, at 115-81; Martha Albertson Fineman, Cracking the Foundational Myths: Independence, Autonomy, and Self-Sufficiency, 8 Am. U. J. Gender, Soc. Pol'y & L. 13 (2000); Deborah Stone, Why We Need A Care Movement, The Nation, Mar. 13, 2000, at 13; see also in the present symposium Mary Becker, Towards a Progressive Politics and a Progressive Constitution, 69 Fordham L. Rev. 2007 (2001).
115. This is an argument that I advance elsewhere, drawing on a range of feminist, liberal and progressive work. See Linda C. McClain, Care as a Public Value: Linking Responsibility, Resources, and Republicanism, 77 Chi.-Kent. L. Rev. (forthcoming 2001); McClain, Citizenship, supra note 94. For important arguments to recognize care as a public value, on which I draw, see Mona Harrington, Care and Equality: Inventing a New Family Politics (1999); Kittay, supra note 7, at 115-81; Martha Albertson Fineman, Cracking the Foundational Myths: Independence, Autonomy, and Self-Sufficiency, 8 Am. U. J. Gender, Soc. Pol'y & L. 13 (2000); Deborah Stone, Why We Need A Care Movement, The Nation, Mar. 13, 2000, at 13; see also in the present symposium Mary Becker, Towards a Progressive Politics and a Progressive Constitution, 69 Fordham L. Rev. 2007 (2001).
116. This is an argument that I advance elsewhere, drawing on a range of feminist, liberal and progressive work. See Linda C. McClain, Care as a Public Value: Linking Responsibility, Resources, and Republicanism, 77 Chi.-Kent. L. Rev. (forthcoming 2001); McClain, Citizenship, supra note 94. For important arguments to recognize care as a public value, on which I draw, see Mona Harrington, Care and Equality: Inventing a New Family Politics (1999); Kittay, supra note 7, at 115-81; Martha Albertson Fineman, Cracking the Foundational Myths: Independence, Autonomy, and Self-Sufficiency, 8 Am. U. J. Gender, Soc. Pol'y & L. 13 (2000); Deborah Stone, Why We Need A Care Movement, The Nation, Mar. 13, 2000, at 13; see also in the present symposium Mary Becker, Towards a Progressive Politics and a Progressive Constitution, 69 Fordham L. Rev. 2007 (2001).
117. This is an argument that I advance elsewhere, drawing on a range of feminist, liberal and progressive work. See Linda C. McClain, Care as a Public Value: Linking Responsibility, Resources, and Republicanism, 77 Chi.-Kent. L. Rev. (forthcoming 2001); McClain, Citizenship, supra note 94. For important arguments to recognize care as a public value, on which I draw, see Mona Harrington, Care and Equality: Inventing a New Family Politics (1999); Kittay, supra note 7, at 115-81; Martha Albertson Fineman, Cracking the Foundational Myths: Independence, Autonomy, and Self-Sufficiency, 8 Am. U. J. Gender, Soc. Pol'y & L. 13 (2000); Deborah Stone, Why We Need A Care Movement, The Nation, Mar. 13, 2000, at 13; see also in the present symposium Mary Becker, Towards a Progressive Politics and a Progressive Constitution, 69 Fordham L. Rev. 2007 (2001).
118. See Harold G. Grasmick et al., The Effects of Religious Fundamentalism and Religiosity on Preference for Traditional Family Norms, 60 Soc. Inquiry 352, 353 (1990). Recall the recent Southern Baptist declaration that wives should graciously submit to their husband's authority.
119. Id.
120. Darren E. Sherkat, "That They Be Keepers of the Home": The Effect of Conservative Religion on Early and Late Transitions Into Housewifery, 41 Rev. of Religious Res. 344, 354 (2000). But Sherkat also found that "fundamentalist women are likely to reenter the workforce when their children are older." Id. 100. Darrren E. Sherkat & Alfred Darnell, The Effect of Parents' Fundamentalism on Children's Educational Attainment: Examining Differences by Gender and Children's Fundamentalism, 38 J. Sci. Study of Religion 23 (1999).
121. Darren E. Sherkat, "That They Be Keepers of the Home": The Effect of Conservative Religion on Early and Late Transitions Into Housewifery, 41 Rev. of Religious Res. 344, 354 (2000). But Sherkat also found that "fundamentalist women are likely to reenter the workforce when their children are older." Id. 100. Darrren E. Sherkat & Alfred Darnell, The Effect of Parents' Fundamentalism on Children's Educational Attainment: Examining Differences by Gender and Children's Fundamentalism, 38 J. Sci. Study of Religion 23 (1999).
122. Margaret Talbot, A Mighty Fortress, N.Y. Times, Feb. 27, 2000, (Magazine), at 34.
123. See infra Part IV.B.1.
124. Susan Moller Okin, Political Liberalism, Justice, and Gender, 105 Ethics 23, 29 (1994) [hereinafter Okin, Political Liberalism, Justice, and Gender]. At least as Okin poses the hypothetical, it is confined to religious fundamentalist families, and does not apply to "most" families in the U.S. and other liberal democracies. Thus, in Is Multiculturalism Bad for Women?, Okin extends her focus on families to the problem of whether Western democracies should recognize group rights for minority cultures present within those democracies. Okin contrasts families in liberal cultures such as the United States (with the exception of religious fundamentalists): women in more liberal cultures are . . . legally guaranteed many of the same freedoms and opportunities as men. In addition, most families in such cultures, with the exception of some religious fundamentalists, do not communicate to their daughters that they are of less value than boys, that their lives are to be confined to domesticity and service to men and children, and that their sexuality is of value only in marriage, in the service of men, and for reproductive ends. This situation, as we have seen, is quite different from that of women in many of the world's other cultures, including many of those from which immigrants to Europe and North America come. Susan Moller Okin, Is Multiculturalism Bad For Women? 16-17 (1999) [hereinafter Okin, Multiculturalism]. For critical responses to Okin, which I do not address here, see id. at 27-113.
125. Susan Moller Okin, Political Liberalism, Justice, and Gender, 105 Ethics 23, 29 (1994) [hereinafter Okin, Political Liberalism, Justice, and Gender]. At least as Okin poses the hypothetical, it is confined to religious fundamentalist families, and does not apply to "most" families in the U.S. and other liberal democracies. Thus, in Is Multiculturalism Bad for Women?, Okin extends her focus on families to the problem of whether Western democracies should recognize group rights for minority cultures present within those democracies. Okin contrasts families in liberal cultures such as the United States (with the exception of religious fundamentalists): women in more liberal cultures are . . . legally guaranteed many of the same freedoms and opportunities as men. In addition, most families in such cultures, with the exception of some religious fundamentalists, do not communicate to their daughters that they are of less value than boys, that their lives are to be confined to domesticity and service to men and children, and that their sexuality is of value only in marriage, in the service of men, and for reproductive ends. This situation, as we have seen, is quite different from that of women in many of the world's other cultures, including many of those from which immigrants to Europe and North America come. Susan Moller Okin, Is Multiculturalism Bad For Women? 16-17 (1999) [hereinafter Okin, Multiculturalism]. For critical responses to Okin, which I do not address here, see id. at 27-113.
126. See Amartya Sen, Inequality Reexamined 122-25 (1992); Amartya Sen, More Than 100 Million Women Are Missing, N.Y. Rev. of Books (Dec. 20, 1990).
127. See Amartya Sen, Inequality Reexamined 122-25 (1992); Amartya Sen, More Than 100 Million Women Are Missing, N.Y. Rev. of Books (Dec. 20, 1990).
128. Salomone, supra note 50, at 236.
129. Okin, Justice, supra note 4, at 138-41.
130. Okin, Political Liberalism, Justice, and Gender, supra note 103, at 38.
131. Okin, Justice, supra note 4, at 183.
132. Id.
133. Susan Moller Okin & Rob Reich, Families and Schools as Compensating Agents in Moral Development for a Multicultural Society, 28 J. Moral Educ. 283, 286 (1999).
134. Id. at 288.
135. Id. at 290.
136. Id.
137. Ira Mark Ellman, Divorce Rates, Marriage Rates, and the Problematic Persistence of Traditional Marital Roles, 34 Fam. L.Q. 1, 2 (2000).
138. Joan Williams, Unbending Gender: Why Family and Work Conflict and What To Do About It 1 (2000). Williams reports a survey finding that two-thirds of Americans believed it would be best if women stayed home to care for their families and children. Id. at 2.
139. Putnam, supra note 83, at 197.
140. See generally Williams, supra note 115, at 2-6 (discussing the conflict women face between work and domesticity).
141. Amara Bachu & Martin O'Connell, Fertility of American Women: Population Characteristics (U.S. Census Bureau, June 1998); Tamar Lewin, Now a Majority: Families With 2 Parents Who Work, N.Y. Times, Oct. 24, 2000, at A20 (reporting data from Census Bureau Report).
142. Amara Bachu & Martin O'Connell, Fertility of American Women: Population Characteristics (U.S. Census Bureau, June 1998); Tamar Lewin, Now a Majority: Families With 2 Parents Who Work, N.Y. Times, Oct. 24, 2000, at A20 (reporting data from Census Bureau Report).
143. Scott Coltrane, Research on Household Labor: Modeling and Measuring the Social Embeddedness of Routine Family Work, 62 J. Marriage & the Fam. 1208, 1208 (2000) ("Although the vast majority of both men and women now agree that family labor should be shared, few men assume equal responsibility for household tasks," and "[o]n average, women perform two or three times as much house work as men"); Lynne M. Casper, My Daddy Takes Care of Mel Fathers as Care Providers, Current Population Reports (Census Bureau, Sept. 1997) (reporting increase in number of fathers taking care of preschoolers during time mothers are working).
144. Scott Coltrane, Research on Household Labor: Modeling and Measuring the Social Embeddedness of Routine Family Work, 62 J. Marriage & the Fam. 1208, 1208 (2000) ("Although the vast majority of both men and women now agree that family labor should be shared, few men assume equal responsibility for household tasks," and "[o]n average, women perform two or three times as much house work as men"); Lynne M. Casper, My Daddy Takes Care of Mel Fathers as Care Providers, Current Population Reports (Census Bureau, Sept. 1997) (reporting increase in number of fathers taking care of preschoolers during time mothers are working).
145. Okin, Political Liberalism, Justice, and Gender, supra note 103, at 30-31; see Rawls, Political Liberalism, supra note 7, at xxix ("The same equality of the Declaration of Independence which Lincoln invoked to condemn slavery can be invoked to condemn the inequality and oppression of women."). In critiquing Rawls' political liberalism for its principle of toleration of reasonable comprehensive moral views, Susan Moller Okin fears that Rawls' "emphasis on toleration of a wide range of comprehensive philosophical, religious, and moral doctrines comes into conflict with some important means by which greater equality between the sexes might be promoted." Okin, Political Liberalism, Justice, and Gender, supra note 103, at 28.
146. Okin, Political Liberalism, Justice, and Gender, supra note 103, at 30-31; see Rawls, Political Liberalism, supra note 7, at xxix ("The same equality of the Declaration of Independence which Lincoln invoked to condemn slavery can be invoked to condemn the inequality and oppression of women."). In critiquing Rawls' political liberalism for its principle of toleration of reasonable comprehensive moral views, Susan Moller Okin fears that Rawls' "emphasis on toleration of a wide range of comprehensive philosophical, religious, and moral doctrines comes into conflict with some important means by which greater equality between the sexes might be promoted." Okin, Political Liberalism, Justice, and Gender, supra note 103, at 28.
147. Okin, Political Liberalism, Justice, and Gender, supra note 103, at 30-31; see Rawls, Political Liberalism, supra note 7, at xxix ("The same equality of the Declaration of Independence which Lincoln invoked to condemn slavery can be invoked to condemn the inequality and oppression of women."). In critiquing Rawls' political liberalism for its principle of toleration of reasonable comprehensive moral views, Susan Moller Okin fears that Rawls' "emphasis on toleration of a wide range of comprehensive philosophical, religious, and moral doctrines comes into conflict with some important means by which greater equality between the sexes might be promoted." Okin, Political Liberalism, Justice, and Gender, supra note 103, at 28.
148. For example, New York City has carried out prominent public awareness campaigns along these lines (e.g., with dramatic subway advertisements) and recently enacted the first municipal civil rights law in the nation protecting against gender-motivated violence. See Nina Bernstein, Council Readies Unique Sex Bias Measure, N.Y.Times, Dec. 1, 2000, at B3.
149. See Prince v. Massachusetts, 321 U.S. 158 (1944) (upholding against constitutional challenge application of state law prohibiting child labor to child distributing religious pamphlets). Although I do not necessarily endorse the result in Prince, I cite it for the general principle that government may promote children's well-being even in certain instances of conflicts with parental autonomy and religious convictions.
150. But, under existing understandings of abuse and neglect laws, the rationale for invoking such laws would focus on the issue of harm and would not likely focus on government's interest in sex equality. Robert H. Mnookin & D. Kelly Weisberg, Child, Family, and State: Problems and Materials on Children and the Law 310-29 (4th ed. 2000) (discussing provision of education as part of parental support obligation). leave for exploration elsewhere what impact the idea of government's affirmative responsibility to carry out a formative project to foster capacity would have on abuse and neglect laws. I assume that if a family practice seriously impaired a child's development of her or his
151. But, under existing understandings of abuse and neglect laws, the rationale for invoking such laws would focus on the issue of harm and would not likely focus on government's interest in sex equality. Robert H. Mnookin & D. Kelly Weisberg, Child, Family, and State: Problems and Materials on Children and the Law 310-29 (4th ed. 2000) (discussing provision of education as part of parental support obligation). leave for exploration elsewhere what impact the idea of government's affirmative responsibility to carry out a formative project to foster capacity would have on abuse and neglect laws. I assume that if a family practice seriously impaired a child's development of her or his capacities, this would trigger a strong governmental interest in some form of prevention, intervention, or amelioration. Cf. Martha C. Nussbaum, Women and Human Development: The Capabilities Approach 275 (2000) (arguing that the state should not intervene in the conduct of family members without a compelling interest, but that "such a compelling interest is always supplied by the protection of the central capabilities.").
152. In her extensive study of the psychology of associational life, Nancy Rosenblum did not study families. Her study of a number of other forms of association concluded that the effects of participation in such associations were "intedeterminate," although they did seem to lead to a certain "democracy of everyday life," which included the virtue of reciprocity. See Rosenblum, supra note 11, at 8-10, 15-17, 349-63. Although Okin makes various hypotheses about the impact of gendered family life on democratic self-government, testing these would call for some sort of empirical evaluation that I do not attempt here.
153. See, e.g., Martha Albertson Fineman, The Neutered Mother, The Sexual Family and Other Twentieth Century Tragedies 177-93 (1995) (discussing regulation of and lack of privacy accorded families headed by single mothers, in contrast to rhetoric of family privacy).
154. McClain & Fleming, supra note 5, at 318 (citing Jane Mansbridge, Using Power/Fighting Power: The Polity, in Democracy and Difference: Contesting the Boundaries of the Political 46, 55 (Seyla Benhabib ed., 1996)).
155. See Patricia Hill Collins, Shifting the Center: Race, Class, and Feminist Theorizing about Motherhood, in Motherhood: Ideology, Experience, and Agency (Evelyn Nakano Glenn et al. eds., 1994); see also Fredrick C. Harris, Will the Circle be Unbroken?: The Erosion and Transformation of African-American Civic Life, in Civil Society, Democracy, and Civic Renewal 317, 323-24 (Robert K. Fullinwider ed., 1999) (describing "oppositional civic culture" characteristic of African-Americans' civic life).
156. See Patricia Hill Collins, Shifting the Center: Race, Class, and Feminist Theorizing about Motherhood, in Motherhood: Ideology, Experience, and Agency (Evelyn Nakano Glenn et al. eds., 1994); see also Fredrick C. Harris, Will the Circle be Unbroken?: The Erosion and Transformation of African-American Civic Life, in Civil Society, Democracy, and Civic Renewal 317, 323-24 (Robert K. Fullinwider ed., 1999) (describing "oppositional civic culture" characteristic of African-Americans' civic life).
157. See Kath Weston, Families We Choose: Lesbians, Gays, Kinship (1991); Suzanne Slater, The Lesbian Family Life Cycle (1995).
158. See Kath Weston, Families We Choose: Lesbians, Gays, Kinship (1991); Suzanne Slater, The Lesbian Family Life Cycle (1995).
159. Okin & Reich, supra note 110, at 285.
160. Id. at 290; Okin, Justice, supra note 4, at 181-82.
161. Rawls, Public Reason Revisited, supra note 28, at 792-93.
162. McClain, Toleration, supra note 5, at 111 (quoting Rawls, Public Reason Revisited, supra note 28, at 790-91). Whether or not Okin's specific proposals of wage- splitting or other remedies to equalize income upon divorce are optimal solutions for protecting vulnerabilities arising from traditional gender roles, or whether other economic measures would be preferable, is not the issue that I wish to take up here. See Ian Shapiro, Democratic Justice 117-22 (1999) (contending that Okin's proposal is too intrusive upon adult men and women's ordering of their intimate and economic lives and would not, in any case, achieve its objectives).
163. McClain, Toleration, supra note 5, at 111 (quoting Rawls, Public Reason Revisited, supra note 28, at 790-91). Whether or not Okin's specific proposals of wage-splitting or other remedies to equalize income upon divorce are optimal solutions for protecting vulnerabilities arising from traditional gender roles, or whether other economic measures would be preferable, is not the issue that I wish to take up here. See Ian Shapiro, Democratic Justice 117-22 (1999) (contending that Okin's proposal is too intrusive upon adult men and women's ordering of their intimate and economic lives and would not, in any case, achieve its objectives).
164. McClain, Toleration, supra note 5, at 111 (quoting Rawls, Public Reason Revisited, supra note 28, at 790-91). Whether or not Okin's specific proposals of wage- splitting or other remedies to equalize income upon divorce are optimal solutions for protecting vulnerabilities arising from traditional gender roles, or whether other economic measures would be preferable, is not the issue that I wish to take up here. See Ian Shapiro, Democratic Justice 117-22 (1999) (contending that Okin's proposal is too intrusive upon adult men and women's ordering of their intimate and economic lives and would not, in any case, achieve its objectives).
165. See Edward J. McCaffery, Taxing Women (1997) (discussing federal income tax policy); Mary E. Becker, Obscuring the Struggle: Sex Discrimination, Social Security, and Stone, Seidman, Sunstein & Tushnet's Constitutional Law, 89 Colum. L. Rev. 264 (1989) (discussing how Social Security disadvantages women); Katherine Silbaugh, Turning Labor into Love: Housework and the Law, 91 Nw. U. L. Rev. 1 (1996) (discussing the legal treatment of housework throughout the law); Nancy C. Staudt, Taxing Housework, 84 Geo. L.J. 1571 (1996) (advocating the treatment of household work as taxable labor).
166. See Edward J. McCaffery, Taxing Women (1997) (discussing federal income tax policy); Mary E. Becker, Obscuring the Struggle: Sex Discrimination, Social Security, and Stone, Seidman, Sunstein & Tushnet's Constitutional Law, 89 Colum. L. Rev. 264 (1989) (discussing how Social Security disadvantages women); Katherine Silbaugh, Turning Labor into Love: Housework and the Law, 91 Nw. U. L. Rev. 1 (1996) (discussing the legal treatment of housework throughout the law); Nancy C. Staudt, Taxing Housework, 84 Geo. L.J. 1571 (1996) (advocating the treatment of household work as taxable labor).
167. See Edward J. McCaffery, Taxing Women (1997) (discussing federal income tax policy); Mary E. Becker, Obscuring the Struggle: Sex Discrimination, Social Security, and Stone, Seidman, Sunstein & Tushnet's Constitutional Law, 89 Colum. L. Rev. 264 (1989) (discussing how Social Security disadvantages women); Katherine Silbaugh, Turning Labor into Love: Housework and the Law, 91 Nw. U. L. Rev. 1 (1996) (discussing the legal treatment of housework throughout the law); Nancy C. Staudt, Taxing Housework, 84 Geo. L.J. 1571 (1996) (advocating the treatment of household work as taxable labor).
168. See Edward J. McCaffery, Taxing Women (1997) (discussing federal income tax policy); Mary E. Becker, Obscuring the Struggle: Sex Discrimination, Social Security, and Stone, Seidman, Sunstein & Tushnet's Constitutional Law, 89 Colum. L. Rev. 264 (1989) (discussing how Social Security disadvantages women); Katherine Silbaugh, Turning Labor into Love: Housework and the Law, 91 Nw. U. L. Rev. 1 (1996) (discussing the legal treatment of housework throughout the law); Nancy C. Staudt, Taxing Housework, 84 Geo. L.J. 1571 (1996) (advocating the treatment of household work as taxable labor).
169. Nussbaum, supra note 123, at 280-83 (emphasis added).
170. Troxel v. Granville, 120 S.Ct. 2054, 2060 (2000) (citation omitted).
171. Id. (quoting Pierce v. Soc'y of Sisters, 268 U.S. 510, 535 (1925) (brackets in original)) ("'It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.'" Id. (quoting Prince v. Massachusetts, 321 U.S. 158, 166 (1944))).
172. Role of Civic Education, supra note 20, at 1; Thomas Lickona, Educating for Character: A Comprehensive Approach, in The Construction of Children's Character 59 (Alex Molnar ed., 1997) (including among key ideas that "parents are a child's first and most important moral teachers, and the school must do everything it can to support parents in this role" and that "the impact of the school-parent partnership is enhanced when the wider community . . . promotes the virtues that make up good character").
173. Role of Civic Education, supra note 20, at 1.
174. Macedo, supra note 18, at 45-87.
175. 347 U.S. 483, 493 (1954).
176. Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 681 (1986) (alteration in original) (quoting Ambach v. Norwick, 441 U.S. 68, 76-77 (1979)).
177. Brown, 347 U.S. at 493.
178. Id. (emphasis added).
179. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 272 (1988) (quoting Bethel Sch. Dist., 478 U.S. at 683).
180. Bethel Sch. Dist., 478 U.S. at 681 (quoting C. Beard & M. Beard, New Basic History of the United States 228 (1968)).
181. Bethel Sch. Dist., 478 U.S. at 681 (quoting C. Beard & M. Beard, New Basic History of the United States 228 (1968)).
182. Brown, 347 U.S. at 493.
183. Troxel v. Granville, 120 S. Ct. 2054, 2069 (2000).
184. Macedo, supra note 18, at 243.
185. Id. at 237.
186. Id. Abner Greene has also expressed this idea of dual sources of authority as consistent with his own view of our constitutional order as authorizing multiple repositories of power. See Greene, supra note 80, at 490-91. In contrast, Wisconsin v. Yoder, 406 U.S. 205 (1972), allowed Amish parents to remove their children, once they reached age 14, from compulsory public education and from any other formal education. But it should be noted that the Court assumed that the Amish community could successfully cultivate in its adolescents the virtues necessary to be both good citizens and successful (i.e., self-sufficient) in life. See id. at 224-25.
187. See, e.g., William Jefferson Clinton, Remarks by the President at Character Education Conference (May 23, 1995) (transcript available on M2 Presswire on lexis.com) (describing character education as "a supplement . . ., not a replacement," for what parents do); William Jefferson Clinton, 1996 State of the Union Address at U.S. Capitol, 2/15/96 Vital Speeches 258 (challenging "all . . . schools to teach character education, to teach good values and good citizenship"); Character Counts! Coalition, http://www.charactercounts.org [hereinafter "Character Counts"] ("Character education is, first and foremost, an obligation of families and faith communities, but schools and use-service organizations also have a responsibility to help develop the character of young people."); Lickona, supra note 137, at 45, 59 ("[P]arents are a child's first and most important moral teachers, and the school must do everything it can to support parents in this role . . . .").
188. See Character Counts, supra note 151; Character Education in America (The Commonwealth Foundation for Public Policy Alternatives, Mar. 1996).
189. Aspen Declaration on Character Education, in Character Counts, supra note 151. An Iowa statute, aimed at making schools safe, fostering academic excellence, and at equipping students to be model citizens, lists the desirable character qualities as: honesty; responsibility; respect and care for the person and property of others; self-discipline; understanding of, respect for, and obedience to law and citizenship; courage, initiative, commitment, and perseverance; kindness, compassion, service, and loyalty; fairness, moderation, and patience; and the dignity and necessity of hard work. Iowa Code Ann. § 256.18 (West 1996).
190. See Amy Gutmann, Democratic Education (1987).
191. Okin and Reich, supra note 110, at 295.
192. For a helpful discussion of the literature and of the famous case, Mozert v. Hawkins, see Macedo, supra note 18, at 157-68.
193. See, e.g., Gutmann, supra note 154, at 50-52 ("Children will eventually need the capacity for rational deliberation to make hard choices in situations where . . . authorities do not supply clear or consistent guidance."); Macedo, supra note 18, at 233-40 ("The current system of public schooling aims to promote directly certain core liberal civic values."); Suzanne Sherry, Responsible Republicanism: Educating for Citizenship, 62 Chi. L. Rev. 131, 157, 172 (including "critical thinking" as a core element of republican education for citizenship).
194. See, e.g., Galston, supra note 23, at 254 (arguing that "sociopolitical institutions" should not encourage values that are "at odds with the deep beliefs of many of its loyal citizens"); Nomi Maya Stolzenberg, "He Drew a Circle That Shut Me Out": Assimilation, Indoctrination, and the Paradox of a Liberal Education, 106 Harv. L. Rev. 581, 609-11 (1993) (discussing the Mozert case and remarking that "the specific interest [the plaintiffs] asserted most strongly was the parents' exclusive right to control their children's upbringing").
195. 827 F.2d 1058 (6th Cir. 1987).
196. Tenn. Code Ann. § 49-6-1007 (1996).
197. Mozert, 827 F.2d at 1068-69.
198. The Role of Civic Education, supra note 20, at 5 (quoting Benjamin Barber, An Aristocracy of Everyone (1992) (emphasis added)); see also Macedo, supra note
199. at 231-40 ("Children must at the very least be provided with the intellectual tools necessary to understand the world around them, formulate their own convictions and make their own way in life."); Gutmann, supra note 154, at 39-47 ("[E]ducation [should not be used] to restrict rational deliberation of competing conceptions of the good life and the good society.").
200. Macedo, supra note 18, at 239-40; The Role of Civic Education, supra note 20, at 5.
201. Mozert, 827 F.2d at 1071 (Kennedy, J., concurring).
202. See, e.g., Macedo, supra note 18, at 240 (learning about "the ethnic, racial, and religious diversity that constitutes our society" is to help children think as citizens and "not live in a mental straitjacket at odds with freedom").
203. Id. at 202.
204. Id. at 207, 232 (emphasis omitted).
205. Galston, supra note 23, at 254. On the ideal of "conscious social reproduction" as an aim of democratic education, see Gutmann, supra note 154, at 39. For a recent, critical evaluation of this ideal, see Salomone, supra note 50, at 197-215.
206. See Stolzenberg, supra note 158, at 611-33.
207. Emily Buss, The Adolescent's Stake in the Allocation of Educational Control Between Parent and State, 67 U. Chi. L. Rev. 1233 (2000).
208. Indeed, my own look at the literature of identity formation suggests that Macedo's civic liberalism would be quite concerned that children not follow the path of identity foreclosures, or those who made identity commitments without a period of exploring, foreclosing possibility by bringing along unquestioned childhood ascriptions. For such adolescents, little or no value attaches to cultivating the capacity for critical reflection; the goal is to preserve tradition, not to question family attachments and religious beliefs. By contrast, those theorists who believe that critical self-reflection should be a core civic virtue that will spill over into all of life would likely wish adolescents to follow the path of identity achievement, that is, those who made identity commitments after a period of exploration, perhaps following a period of moratorium, in which they were in a period of crisis or exploration in an effort to discover the values or goals that fit them. For these categories, see Ruthellen Josselson, The Theory of Identity Development and the Question of Intervention, in Interventions for Adolescent Identity Development 12, 17-18 (Sally L. Archer ed., 1994) (using categories defined by James Marcia, based on Eric Erickson's work).
209. Some accounts that do discuss the issue include Gutmann, supra note 154, at 12-13, 113-15; Salomone, supra note 50, at 234-36. In this article, I am confining my discussion to the role of common public schools. I leave for elaboration elsewhere both a consideration of the question of vouchers for private schools and a consideration of how and to what extent private schools (including religious schools) should carry out the type of civic education I recommend here.
210. Mozert v. Hawkins, 827 F.2d 1058, 1062 (6th Cir. 1987).
211. Amy Gutmann & Dennis Thompson, Democracy and Disagreement 63-67 (1996) (defending reading exercise at issue in Mozert picturing a boy cooking while a girl reads to him).
212. If schools properly seek to foster children's capacities for personal self-government, as part of their mission of fostering success in life, then this raises difficult empirical and normative questions about when "interventions for identity," i.e., ways in which governmental actors may seek to encourage optimal paths of development, may be appropriate. See generally Archer, An Overview, in Interventions for Adolescent Identity Development 3, 10 (Sally L. Archer ed., 1994) (calling for "continued development of interventions that could enrich" adolescent identity development). Some scholars on identity development, for example, argue that if certain paths of identity development allow an individual to make his or her way in the world more effectively, then such interventions are justified. Schools might, for example, consider how to help children negotiate difficult tasks of identity development when their home environments are not optimally suited to support such tasks. Here, schools are engaging in a sort of intervention on behalf of fostering children's well-being, but one that doesn't directly regulate or intrude upon the family, and yet seeks to influence or, in some sense, have an effect on family dynamics. There are also many ways in which schools, through curriculum, can reinforce or even enhance families' roles in fostering children's capacities. Such curriculum could also seek to ameliorate the effects when families fail to offer an optimal environment for fostering children's capacities. This type of curriculum, generally, seems to be a promising and salutary way to carry out government's formative project. It also would find justification under the states' police power. If, as I argue, we should take seriously the idea that families properly serve an important institutional role of fostering children's capacities, then we should also think about the optimal circumstances within which families can do so. Of course, there are many prudential reasons for concern over state interventions, as well as constitutional restraints.
213. By contrast, even though women's reproductive rights are part of our constitutional norms of liberty and equality, Salomone would not include them in the common national core; because abortion is controversial and contested, education about it is a matter on which parents should exercise choice concerning curriculum and school. Salomone, supra note 50, at 228-66.
214. The Role of Civic Education, supra note 20.
215. Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 681 (1986) (quoting Ambach v. Norwick, 441 U.S. 68, 76-77 (1979)).
216. A more explicit focus upon sex equality might help to strengthen the type of "civic education" about basic rights and liberties that political liberalism seeks to give even to children whose parents wish to withdraw them from the world. Rawls, Political Liberalism, supra note 7, at 199-200. For example, Okin grants that such "civic education" "could be helpful in partially resolving the conflict between religious toleration and gender equality" because it "could to some extent counteract the isolation some religious groups now succeed in maintaining for their children." Okin, Political Liberalism, Justice, and Gender, supra note 103, at 32. But she is dubious whether this would suffice "to enable children whose primary environment taught them basic inequalities to question these inequalities deeply and successfully." Id. If the children live in a culture that reinforces these unequal social roles, then how will children develop the capacity to question those social roles? Okin, Multiculturalism, supra note 103, at 22.
217. Massaro, supra note 51, at 140-52.
218. For an interesting example of such gender education, see Karen Greenlaw Bieri & Mindy Bingham, A Working Curriculum for Gender Roles, in Interventions for Adolescent Identity Development 141 (Sally L. Archer ed., 1994).
219. See Aspen Declaration on Character Education, in Character Counts, supra note 151 (listing core ethical values as: "respect, responsibility, trustworthiness, justice and fairness, caring, and civic virtue and citizenship").
220. For an introduction to this debate, see Alfie Kohn, The Trouble With Character Education, in The Construction of Children's Character 154 (Alex Molnar ed., 1997) (contending that character education aims at uncritical deference to authority rather than the better goal of fostering children's autonomy and ethical development); Charles S. White, The Moral Dimension of Civic Education in the Elementary School: Habit or Reason?, 179 J. Educ. 35 (1997) (summarizing the debate and urging a middle way, attentive to both approaches).
221. For an introduction to this debate, see Alfie Kohn, The Trouble With Character Education, in The Construction of Children's Character 154 (Alex Molnar ed., 1997) (contending that character education aims at uncritical deference to authority rather than the better goal of fostering children's autonomy and ethical development); Charles S. White, The Moral Dimension of Civic Education in the Elementary School: Habit or Reason?, 179 J. Educ. 35 (1997) (summarizing the debate and urging a middle way, attentive to both approaches).