Civic virtue and the limits of constitutionalism

Fordham Law Review

Volumn 69, Issue 5, 2001, Pages 2131-2150

  Eisgruber, Christopher L ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0035609653     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (80)

1. See generally Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (1991); Michael J. Sandel, Democracy's Discontent: America in Search of a Public Philosophy (1996). Glendon contends that "a gradual evolution in the role of courts" has "propelled" American political discourse to take the form of what she calls "rights talk." Glendon, supra, at 4. She blames this development for a remarkable range of political maladies. "[R]ights talk," according to Glendon, "promotes unrealistic expectations, heightens social conflict, [ ] inhibits dialogue that might lead toward consensus, accommodation, or . . . the discovery of common ground . . . [and] undermines the principal seedbeds of civic and personal virtue." Id. at 14. Sandel says that "constitutional discourse has come to define the terms of political discourse in American public life." Sandel, supra, at 108. According to Sandel, the Supreme Court presides over a misguided quest to "banish moral and religious argument from the public realm," and that quest is "impoverishing political discourse and eroding the moral and civic resources necessary to self-government." Id. at 23.
2. See generally Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (1991); Michael J. Sandel, Democracy's Discontent: America in Search of a Public Philosophy (1996). Glendon contends that "a gradual evolution in the role of courts" has "propelled" American political discourse to take the form of what she calls "rights talk." Glendon, supra, at 4. She blames this development for a remarkable range of political maladies. "[R]ights talk," according to Glendon, "promotes unrealistic expectations, heightens social conflict, [ ] inhibits dialogue that might lead toward consensus, accommodation, or . . . the discovery of common ground . . . [and] undermines the principal seedbeds of civic and personal virtue." Id. at 14. Sandel says that "constitutional discourse has come to define the terms of political discourse in American public life." Sandel, supra, at 108. According to Sandel, the Supreme Court presides over a misguided quest to "banish moral and religious argument from the public realm," and that quest is "impoverishing political discourse and eroding the moral and civic resources necessary to self-government." Id. at 23.
3. See generally Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (1991); Michael J. Sandel, Democracy's Discontent: America in Search of a Public Philosophy (1996). Glendon contends that "a gradual evolution in the role of courts" has "propelled" American political discourse to take the form of what she calls "rights talk." Glendon, supra, at 4. She blames this development for a remarkable range of political maladies. "[R]ights talk," according to Glendon, "promotes unrealistic expectations, heightens social conflict, [ ] inhibits dialogue that might lead toward consensus, accommodation, or . . . the discovery of common ground . . . [and] undermines the principal seedbeds of civic and personal virtue." Id. at 14. Sandel says that "constitutional discourse has come to define the terms of political discourse in American public life." Sandel, supra, at 108. According to Sandel, the Supreme Court presides over a misguided quest to "banish moral and religious argument from the public realm," and that quest is "impoverishing political discourse and eroding the moral and civic resources necessary to self-government." Id. at 23.
4. See generally Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (1991); Michael J. Sandel, Democracy's Discontent: America in Search of a Public Philosophy (1996). Glendon contends that "a gradual evolution in the role of courts" has "propelled" American political discourse to take the form of what she calls "rights talk." Glendon, supra, at 4. She blames this development for a remarkable range of political maladies. "[R]ights talk," according to Glendon, "promotes unrealistic expectations, heightens social conflict, [ ] inhibits dialogue that might lead toward consensus, accommodation, or . . . the discovery of common ground . . . [and] undermines the principal seedbeds of civic and personal virtue." Id. at 14. Sandel says that "constitutional discourse has come to define the terms of political discourse in American public life." Sandel, supra, at 108. According to Sandel, the Supreme Court presides over a misguided quest to "banish moral and religious argument from the public realm," and that quest is "impoverishing political discourse and eroding the moral and civic resources necessary to self-government." Id. at 23.
5. See generally Stephen L. Carter, The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion (1993).
6. 424 U.S. 1 (1976).
7. Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality 351-52, 369-70 (2000); Burt Neuborne, Buckley's Analytical Flaws, 6 J.L. & Pol'y 111, 115 (1997).
8. Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality 351- 52, 369-70 (2000); Burt Neuborne, Buckley's Analytical Flaws, 6 J.L. & Pol'y 111, 115 (1997).
9. In his comment on this article, Sotirios Barber says that he is unsure about whether I take "a positive view, or a welfarist view of the Constitution, as opposed to either a negative or a proceduralist view of the Constitution." Sotirios A. Barber, On Professor Eisgruber's View of the Constitution and the Good Society, 69 Fordham L. Rev., 2151, 2151 (2001). He is also unsure about whether I believe that "constitution-making and maintenance can be separated from the concern for virtue and the good society." Id. at 2156. I wonder whether these ambiguities might be more of Barber's making than of mine, but in any event let me state for the record that I accept what Barber calls "a positive or welfarist view of the Constitution." I also agree with him that constitution-making and maintenance cannot be separated from concern about virtue and the good society. What I argue in this paper is, first, that there are limits (rather severe limits, I think) to the kind of virtue and the kind of good society that constitutionalists may reasonably hope to achieve, and second, that many constitutional theorists have been insufficiently attentive to those limits.
10. An excellent short treatment of the influence constitutions exert on citizen character is found in Martin Diamond, Ethics and Politics: The American Way, in The Moral Foundations of the American Republic 75-108 (Robert H. Horwitz ed., 3d ed. 1986).
11. Sotirios Barber seems to interpret this sentence to mean that people should be free to live any life that appeals to them. Barber, supra note 5, at 2154-55. He then goes on to prove (without much difficulty) that I cannot really be serious about this proposition, since I do not believe that people should be free to pursue lives that are violent and racist. But I never say that people should be free to live any life that might appeal to them; what I say is that there are many good lives, and people should be free to decide which "such life" - that is, which of the many lives that are truly good-they will live.
12. This justification for liberal political rights has been elaborated by Joseph Raz. See, e.g., Joseph Raz, The Morality of Freedom 418-19 (1986).
13. Sandel, supra note 1, at 76.
14. Id. at 54.
15. Id. at 55. Sandel makes a related mistake by confusing the truthful claim that constitutional doctrine requires "[government . . . to respect the capacity of persons to choose their values and relationships for themselves," with the false claim that constitutional doctrine presupposes that "what matters above all . . . is not the ends we choose but our capacity to choose them." Id. at 12, 92. Constitutional doctrine rightly values the freedom to make choices about matters of moral and ethical importance, but it does not follow that it values only the capacity for choice, much less that it treats all choices as equally good.
16. Sandel tends to characterize Supreme Court doctrine as concerned with "making choices" rather than with "doing what one wants"; as a result, he can criticize the Court for assuming, implausibly, that basic commitments and values are "chosen" rather than, say, "held," "discovered," "recognized," or "accepted." See, e.g., id. at 118 ("[T]he freely choosing, autonomous self has come to prevail in constitutional law just at the time it has faded as a plausible self-image in contract law, and in economic life generally."). Sandel's distinction is a red-herring: even if values are "discovered" or simply "held" rather than "chosen," constitutions should put some value on the freedom of people to do what they want (within limits, of course) rather than what the polity deems virtuous.
17. Robert D. Putnam, Bowling Alone: The Collapse and Revival of American Community 221-46 (2000).
18. Margaret Talbot, in her review of Bowling Alone, plausibly suggests that Putnam assigns too much blame to television. Margaret Talbot, Who Wants to Be a Legionnaire?, N.Y. Times, June 25, 2000, § 7 (Book Review), at 11.
19. Margaret Talbot, in her review of Bowling Alone, plausibly suggests that Putnam assigns too much blame to television. Margaret Talbot, Who Wants to Be a Legionnaire?, N.Y. Times, June 25, 2000, § 7 (Book Review), at 11.
20. Watching television is positively correlated with headaches, stomachaches, and insomnia. Putnam, supra note 13, at 240-41.
21. In the draft of this paper which I presented orally at the Conference on the Constitution and the Good Society, I made a less precise claim: namely, that it would be hard for the government to "reduce the number of . . . 'couch potatoes' . . . without violating principles of free speech." In response, Sotirios Barber and others correctly pointed out that the government could pursue that goal by funding schools, the arts, and the sciences. Barber, supra note 5, at 2155 n.25. There is, of course, a difficult empirical question about the impact of any such scheme: funding the sciences, for example, might produce better, more seductive televisions rather than an intellectually active citizenry. Still, as I say at the end of this article, it seems undeniable that the government can improve civic culture by increasing certain kinds of public expenditures, especially those related to education. See infra text accompanying note 55. But none of that is inconsistent with my basic point: the government will still have to give people the freedom to live badly. Even if the government can reduce the number of American couch potatoes, it cannot preclude people from becoming couch potatoes: the government can spend money to educate people, but it will also have to give educated citizens the freedom to spend their hours lounging in front of television sets. And many Americans, blessed with a decent (if not good) education and publicly-funded recreational opportunities, choose to do just that.
22. Putnam claims that watching TV news, unlike watching TV entertainment, has positive correlations with civic engagement: "TV news viewing is positively associated with civic involvement. Those of us who rely solely on TV news are not quite as civic in our behavior as our fellow citizens who rely on newspapers, but we news watchers are nevertheless more civic than most other Americans." Putnam, supra note 13, at 220.
23. "In this and like communities, public sentiment is everything. With public sentiment, nothing can fail; without it nothing can succeed." The Ottawa Debate, reprinted in Created Equal? The Complete Lincoln-Douglas Debates of 1858, at 128 (Paul M. Angle ed., 1958) (Abraham Lincoln, Reply to Stephen Douglas at Ottawa, Illinois (Aug. 21, 1858)).
24. Cf. Joseph Cropsey, The United States as Regime and the Sources of the American Way of Life, in Horwitz, supra note 6, at 165, 166-67 ("[W]hile the coercive fragment of the political fraction can be thought of as under our deliberate control through suffrages and process of known law, every other element of the regime is subject to ongoing thought, which, in its political effect, if not in its origin, has so much in common with chance that we may for the moment count the two as equivalent.").
25. Cf. Joseph Cropsey, The United States as Regime and the Sources of the American Way of Life, in Horwitz, supra note 6, at 165, 166-67 ("[W]hile the coercive fragment of the political fraction can be thought of as under our deliberate control through suffrages and process of known law, every other element of the regime is subject to ongoing thought, which, in its political effect, if not in its origin, has so much in common with chance that we may for the moment count the two as equivalent.").
26. Benjamin R. Barber, Neither Leaders Nor Followers: Citizenship Under Strong Democracy, in A Passion for Democracy: American Essays 95, 98 (1998).
27. Putnam, supra note 13, at 37.
28. Sidney Verba et al., Voice and Equality: Civic Voluntarism in American Politics 73 (1995); see also Putnam, supra note 13, at 159-64 (describing the rise of professionalized interest group politics in which citizens are "fans" not "players").
29. Sidney Verba et al., Voice and Equality: Civic Voluntarism in American Politics 73 (1995); see also Putnam, supra note 13, at 159-64 (describing the rise of professionalized interest group politics in which citizens are "fans" not "players").
30. Some commentators who envy the solidarity and civic-mindedness sometimes produced by wartime citizenship have suggested that something similar might be achieved in peacetime through a compulsory "national service" program in which young people would be forced to render public service of one kind or another. See, e.g., Philip Selznick, The Idea of a Communitarian Morality, 75 Cal. L. Rev. 445, 456 (1987) (endorsing such a plan). Such proposals overlook the need for public support. A crucial feature of the political context for military service in World War II was that most Americans felt themselves united by "shared adversity and a shared enemy." Putnam, supra note 13, at 268, 270-71. That is not true of every war; for example, it was not "repeated in the 1950s in Korea or in the 1960s in Vietnam." Id. at 272. Nor is there any shared sense of crisis in the United States now. On the contrary, the proposed "national service" programs would be created not to meet an external threat to the national community, but because policy-makers feel that America's young people are too foolish to be trusted with control of their own lives. Under these circumstances, a mandatory "national service" program likely would be experienced principally (although by no means exclusively) as a form of taxation.
31. Some commentators who envy the solidarity and civic-mindedness sometimes produced by wartime citizenship have suggested that something similar might be achieved in peacetime through a compulsory "national service" program in which young people would be forced to render public service of one kind or another. See, e.g., Philip Selznick, The Idea of a Communitarian Morality, 75 Cal. L. Rev. 445, 456 (1987) (endorsing such a plan). Such proposals overlook the need for public support. A crucial feature of the political context for military service in World War II was that most Americans felt themselves united by "shared adversity and a shared enemy." Putnam, supra note 13, at 268, 270-71. That is not true of every war; for example, it was not "repeated in the 1950s in Korea or in the 1960s in Vietnam." Id. at 272. Nor is there any shared sense of crisis in the United States now. On the contrary, the proposed "national service" programs would be created not to meet an external threat to the national community, but because policy-makers feel that America's young people are too foolish to be trusted with control of their own lives. Under these circumstances, a mandatory "national service" program likely would be experienced principally (although by no means exclusively) as a form of taxation.
32. Putnam describes the profound, and for the most part salutary, effects of World War II on American civil society. See Putnam, supra note 13, at 267-72.
33. The best American example of such leadership is the Gettysburg Address, where Lincoln self-consciously revised the meaning of the Civil War and, with it, the American nation. See generally Garry Wills, Lincoln at Gettysburg: The Words that Remade America (1992). The point applies more generally, however; thus World War II helped to launch an extended period of civic engagement in the United States because "most Americans in 1945 felt that the war had been a just one and that their terrible collective sacrifice - all those sons and daughters who would not come home - had been in some measure vindicated by victory. " Putnam, supra note 13, at 271-72.
34. The best American example of such leadership is the Gettysburg Address, where Lincoln self-consciously revised the meaning of the Civil War and, with it, the American nation. See generally Garry Wills, Lincoln at Gettysburg: The Words that Remade America (1992). The point applies more generally, however; thus World War II helped to launch an extended period of civic engagement in the United States because "most Americans in 1945 felt that the war had been a just one and that their terrible collective sacrifice - all those sons and daughters who would not come home - had been in some measure vindicated by victory. " Putnam, supra note 13, at 271-72.
35. If so, that is not a good reason to wish for war, which is genuinely horrible, but yet another reason not to expect much from democratic citizens. Putnam acknowledges this point: "Creating (or re-creating) social capital is no simple task. It would be eased by a palpable national crisis, like war or depression or natural disaster, but for better and for worse, America at the dawn of the new century faces no such galvanizing crisis." Putnam, supra note 13, at 402 . Alan Ryan, in his review of Putnam's book, underscores it. Alan Ryan, My Way, N. Y. Rev. of Books 47, 50 (Aug. 10, 2000).
36. If so, that is not a good reason to wish for war, which is genuinely horrible, but yet another reason not to expect much from democratic citizens. Putnam acknowledges this point: "Creating (or re-creating) social capital is no simple task. It would be eased by a palpable national crisis, like war or depression or natural disaster, but for better and for worse, America at the dawn of the new century faces no such galvanizing crisis." Putnam, supra note 13, at 402 . Alan Ryan, in his review of Putnam's book, underscores it. Alan Ryan, My Way, N. Y. Rev. of Books 47, 50 (Aug. 10, 2000).
37. Jeremy Waldron, Law and Disagreement 291 (1999).
38. There is, accordingly, an unrecognized irony in the title of the 1998 report of the National Commission on Civic Renewal, A Nation of Spectators: How Civic Disengagement Weakens America and What We Can Do About It, available at http://www.puaf.umd.edu/civicrenewal (last updated Sept. 27, 1999). The Commission intends A Nation of Spectators to describe a contingent, and changeable, feature of American politics; the title may instead capture a basic structural feature of large-scale democratic politics which renders the Commission's entire project quixotic.
39. I elaborate this point in Christopher L. Eisgruber, Constitutional Self-Government (Harvard Univ. Press forthcoming 2001) (ch. 3, on file with author).
40. Neuborne, supra note 4, at 115.
41. Id. at 112-13.
42. There is more to be said on behalf of the decision than its liberal critics usually admit. See, e.g., Kathleen M. Sullivan, Political Money and Freedom of Speech, 30 U.C. Davis L. Rev. 663 (1997) (defending the core principles of Buckley).
43. It is an entirely different question whether overturning Buckley would affect the distribution of power within American politics-e.g., by transferring power from moneyed interests to those that are best equipped for grass-roots organizing, such as evangelical churches. See Putnam, supra note 13, at 162 (noting that "unlike [with] other newly mobilized groups, such as environmentalists, firm and enduring organizational foundations for the politicization of the evangelical community already existed").
44. Kathleen Hall Jamieson, Everything You Think You Know About Politics . . . And Why You're Wrong 5 (2000).
45. To do the relevant empirical work, researchers would have to find a reliable way to identify accurately the pivotal twenty percent of the electorate. This group presumably includes any voter who reports herself to be "undecided," but it would also have to include any voter who reports herself firmly in the Gore camp, for example, but who (whether she admits it or not) might later change her mind.
46. Richard Benedetto, Capitalizing on the Convention; Poll: GOP's Image Reform is Working, USA Today, Aug. 7, 2000, at 2A.
47. Laurence McQuillan, Gore Turns To Lieberman; First Jewish VP Pick Lifts Dems' Standing in Poll, USA Today, Aug. 8, 2000, at 1A.
48. Id. Note that the USA Today/CNN/Gallup Poll immediately following the Lieberman selection produced numbers for registered voters, whereas the post-Convention poll distinguished between registered voters and likely voters and produced numbers for both samples of the electorate. The "likely voters" numbers are considered more reliable indicators of likely electoral outcomes, but since the later of the two polls surveyed all registered voters, it is impossible to say how dramatically the Lieberman selection altered Gore's momentary support among likely voters.
49. I can't prove they were the same people, of course; it is possible that all the people who switched to Gore after the Lieberman announcement were voters who had been undecided or who had supported Bush prior to the Republican Convention.
50. Jamieson and her colleagues present evidence that the media does indeed cover campaign speeches as strategic ploys rather than substantive policy discussions. Jamieson, supra note 34, at 13, 38-40. Jamieson criticizes this tendency and attributes it to various self-serving motives on the part of journalists. Id. at 39. In my view, however, it is also a rational response to the interests and needs of the audience for campaign news - an audience that consists principally of people who want to know who's winning, not for whom they should vote.
51. One of the more depressing statistics collected by Putnam (in a book filled with depressing statistics) is that fewer than one in three Americans under the age of forty reads a newspaper on a daily basis. Putnam, supra note 13, at 219.
52. See, e.g., Jamieson, supra note 34, at xiii, 8-10, 106, 211-12.
53. Benjamin R. Barber, Strong Democracy: Participatory Politics for a New Age 267-73, 290-93 (1984).
54. Winston Churchill said, "Democracy is the worst form of government except all those other forms that have been tried from time to time." The International Thesaurus of Quotations § 231(7), at 146 (1970) (quoting Sir Winston Churchill, speech to the House of Commons (Nov. 1947)).
55. See Christopher L. Eisgruber, Ethnic Segregation by Religion and Race: Reflections on Kiryas Joel and Shaw v. Reno, 26 Cumb. L. Rev. 515 (1996); Christopher L. Eisgruber, Political Unity and the Powers of Government, 41 UCLA L. Rev. 1297 (1994); Christopher L. Eisgruber, The Constitutional Value of Assimilation, 96 Colum. L. Rev. 87 (1996).
56. See Christopher L. Eisgruber, Ethnic Segregation by Religion and Race: Reflections on Kiryas Joel and Shaw v. Reno, 26 Cumb. L. Rev. 515 (1996); Christopher L. Eisgruber, Political Unity and the Powers of Government, 41 UCLA L. Rev. 1297 (1994); Christopher L. Eisgruber, The Constitutional Value of Assimilation, 96 Colum. L. Rev. 87 (1996).
57. See Christopher L. Eisgruber, Ethnic Segregation by Religion and Race: Reflections on Kiryas Joel and Shaw v. Reno, 26 Cumb. L. Rev. 515 (1996); Christopher L. Eisgruber, Political Unity and the Powers of Government, 41 UCLA L. Rev. 1297 (1994); Christopher L. Eisgruber, The Constitutional Value of Assimilation, 96 Colum. L. Rev. 87 (1996).
58. 512 U.S. 687 (1994).
59. Linda McClain and James Fleming suggest that the best justifications for reviving civil society will often relate "as much to securing what we call 'deliberative autonomy' - enabling people to decide how to live their own lives - as to promoting 'deliberative democracy' - preparing them for participation in democratic life." Linda C. McClain & James E. Fleming, Some Questions for Civil Society-Revivalists, 75 Chi.-Kent L. Rev. 301, 308 (2000).
60. Putnam, supra note 13, at 294.
61. Official estimates suggest that the number of illegal immigrants residing in the United States increases by around 275,000 persons each year. See Illegal Alien Resident Population, at http://www.ins.usdoj.gov/graphics/aboutins/statistics/ illegalalien/index.htm (last modified Dec. 20, 2000).
62. Of course, not everybody has neglected the constitutional questions raised by immigration law. See, e.g., Gerald L. Neuman, Strangers to the Constitution: Immigrants, Borders, and Fundamental Law (1996); Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (1997); T. Alexander Aleinikoff, Theories of Loss of Citizenship, 84 Mich. L. Rev. 1471 (1986); Linda S. Bosniak, Membership, Equality, and the Difference that Alienage Makes, 69 N.Y.U. L. Rev. 1047 (1994); Hiroshi Motomura, The Curious Evolution of Immigration Law: Procedural Surrogates for Substantive Constitutional Rights, 92 Colum. L. Rev. 1625 (1992); Peter J. Spiro, The Citizenship Dilemma, 51 Stan. L. Rev. 597 (1999) (book review). My own foray into the field is Christopher L. Eisgruber, Birthright Citizenship and the Constitution, 72 N.Y.U. L. Rev. 54 (1997).
63. Of course, not everybody has neglected the constitutional questions raised by immigration law. See, e.g., Gerald L. Neuman, Strangers to the Constitution: Immigrants, Borders, and Fundamental Law (1996); Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (1997); T. Alexander Aleinikoff, Theories of Loss of Citizenship, 84 Mich. L. Rev. 1471 (1986); Linda S. Bosniak, Membership, Equality, and the Difference that Alienage Makes, 69 N.Y.U. L. Rev. 1047 (1994); Hiroshi Motomura, The Curious Evolution of Immigration Law: Procedural Surrogates for Substantive Constitutional Rights, 92 Colum. L. Rev. 1625 (1992); Peter J. Spiro, The Citizenship Dilemma, 51 Stan. L. Rev. 597 (1999) (book review). My own foray into the field is Christopher L. Eisgruber, Birthright Citizenship and the Constitution, 72 N.Y.U. L. Rev. 54 (1997).
64. Of course, not everybody has neglected the constitutional questions raised by immigration law. See, e.g., Gerald L. Neuman, Strangers to the Constitution: Immigrants, Borders, and Fundamental Law (1996); Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (1997); T. Alexander Aleinikoff, Theories of Loss of Citizenship, 84 Mich. L. Rev. 1471 (1986); Linda S. Bosniak, Membership, Equality, and the Difference that Alienage Makes, 69 N.Y.U. L. Rev. 1047 (1994); Hiroshi Motomura, The Curious Evolution of Immigration Law: Procedural Surrogates for Substantive Constitutional Rights, 92 Colum. L. Rev. 1625 (1992); Peter J. Spiro, The Citizenship Dilemma, 51 Stan. L. Rev. 597 (1999) (book review). My own foray into the field is Christopher L. Eisgruber, Birthright Citizenship and the Constitution, 72 N.Y.U. L. Rev. 54 (1997).
65. Of course, not everybody has neglected the constitutional questions raised by immigration law. See, e.g., Gerald L. Neuman, Strangers to the Constitution: Immigrants, Borders, and Fundamental Law (1996); Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (1997); T. Alexander Aleinikoff, Theories of Loss of Citizenship, 84 Mich. L. Rev. 1471 (1986); Linda S. Bosniak, Membership, Equality, and the Difference that Alienage Makes, 69 N.Y.U. L. Rev. 1047 (1994); Hiroshi Motomura, The Curious Evolution of Immigration Law: Procedural Surrogates for Substantive Constitutional Rights, 92 Colum. L. Rev. 1625 (1992); Peter J. Spiro, The Citizenship Dilemma, 51 Stan. L. Rev. 597 (1999) (book review). My own foray into the field is Christopher L. Eisgruber, Birthright Citizenship and the Constitution, 72 N.Y.U. L. Rev. 54 (1997).
66. Of course, not everybody has neglected the constitutional questions raised by immigration law. See, e.g., Gerald L. Neuman, Strangers to the Constitution: Immigrants, Borders, and Fundamental Law (1996); Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (1997); T. Alexander Aleinikoff, Theories of Loss of Citizenship, 84 Mich. L. Rev. 1471 (1986); Linda S. Bosniak, Membership, Equality, and the Difference that Alienage Makes, 69 N.Y.U. L. Rev. 1047 (1994); Hiroshi Motomura, The Curious Evolution of Immigration Law: Procedural Surrogates for Substantive Constitutional Rights, 92 Colum. L. Rev. 1625 (1992); Peter J. Spiro, The Citizenship Dilemma, 51 Stan. L. Rev. 597 (1999) (book review). My own foray into the field is Christopher L. Eisgruber, Birthright Citizenship and the Constitution, 72 N.Y.U. L. Rev. 54 (1997).
67. Of course, not everybody has neglected the constitutional questions raised by immigration law. See, e.g., Gerald L. Neuman, Strangers to the Constitution: Immigrants, Borders, and Fundamental Law (1996); Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (1997); T. Alexander Aleinikoff, Theories of Loss of Citizenship, 84 Mich. L. Rev. 1471 (1986); Linda S. Bosniak, Membership, Equality, and the Difference that Alienage Makes, 69 N.Y.U. L. Rev. 1047 (1994); Hiroshi Motomura, The Curious Evolution of Immigration Law: Procedural Surrogates for Substantive Constitutional Rights, 92 Colum. L. Rev. 1625 (1992); Peter J. Spiro, The Citizenship Dilemma, 51 Stan. L. Rev. 597 (1999) (book review). My own foray into the field is Christopher L. Eisgruber, Birthright Citizenship and the Constitution, 72 N.Y.U. L. Rev. 54 (1997).
68. Of course, not everybody has neglected the constitutional questions raised by immigration law. See, e.g., Gerald L. Neuman, Strangers to the Constitution: Immigrants, Borders, and Fundamental Law (1996); Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (1997); T. Alexander Aleinikoff, Theories of Loss of Citizenship, 84 Mich. L. Rev. 1471 (1986); Linda S. Bosniak, Membership, Equality, and the Difference that Alienage Makes, 69 N.Y.U. L. Rev. 1047 (1994); Hiroshi Motomura, The Curious Evolution of Immigration Law: Procedural Surrogates for Substantive Constitutional Rights, 92 Colum. L. Rev. 1625 (1992); Peter J. Spiro, The Citizenship Dilemma, 51 Stan. L. Rev. 597 (1999) (book review). My own foray into the field is Christopher L. Eisgruber, Birthright Citizenship and the Constitution, 72 N.Y.U. L. Rev. 54 (1997).
69. Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality 38 (1983).
70. Abraham Lincoln, The Gettysburg Address (Nov. 19, 1863), in Wills, supra note 25, at 263.
71. The literature is extensive; among the notable works are: Amy Gutmann, Democratic Education (1987); Stephen Macedo, Diversity and Distrust: Civic Education in a Multicultural Democracy (2000); Seedbeds of Virtue: Sources of Competence, Character and Citizenship in American Society (Mary Ann Glendon & David Blankenhorn eds., 1995); see also Linda C. McClain, The Domain of Civic Virtue in a Good Society: Families, Schools, and Sex Equality, 69 Fordham L. Rev. 1617 (2001).
72. The literature is extensive; among the notable works are: Amy Gutmann, Democratic Education (1987); Stephen Macedo, Diversity and Distrust: Civic Education in a Multicultural Democracy (2000); Seedbeds of Virtue: Sources of Competence, Character and Citizenship in American Society (Mary Ann Glendon & David Blankenhorn eds., 1995); see also Linda C. McClain, The Domain of Civic Virtue in a Good Society: Families, Schools, and Sex Equality, 69 Fordham L. Rev. 1617 (2001).
73. The literature is extensive; among the notable works are: Amy Gutmann, Democratic Education (1987); Stephen Macedo, Diversity and Distrust: Civic Education in a Multicultural Democracy (2000); Seedbeds of Virtue: Sources of Competence, Character and Citizenship in American Society (Mary Ann Glendon & David Blankenhorn eds., 1995); see also Linda C. McClain, The Domain of Civic Virtue in a Good Society: Families, Schools, and Sex Equality, 69 Fordham L. Rev. 1617 (2001).
74. The literature is extensive; among the notable works are: Amy Gutmann, Democratic Education (1987); Stephen Macedo, Diversity and Distrust: Civic Education in a Multicultural Democracy (2000); Seedbeds of Virtue: Sources of Competence, Character and Citizenship in American Society (Mary Ann Glendon & David Blankenhorn eds., 1995); see also Linda C. McClain, The Domain of Civic Virtue in a Good Society: Families, Schools, and Sex Equality, 69 Fordham L. Rev. 1617 (2001).
75. I pursue some implications of this point in Christopher L. Eisgruber, How do Liberal Democracies Teach Values?, in Nomos XLIII: Moral and Political Education (Stephen Macedo ed., N.Y. Univ. Press forthcoming 2001).
76. One of Putnam's most remarkable claims is that North Carolina could bring its public schools up to Connecticut's (significantly better) standards if North Carolina citizens were to "double their frequency of club meeting attendance," but that "it would be virtually impossible [for North Carolinians] to achieve the same progress simply by reducing class size." Putnam, supra note 13, at 301. If Putnam is correct, then the correlation between educational quality and government spending might turn out to be astonishingly small. On the other hand, Putnam himself seems to think that much can be accomplished by reducing school size, rather than class size; his rationale is that "more students in smaller schools have an opportunity to play trombone or left tackle or King Lear." Id. at 405.
77. A controversial study by John Donohue and Steven Levitt, for example, provides empirical evidence for the possibility that expansions in abortion rights, by reducing the number of unwanted children, will eventually produce reductions in crime rates. See Erica Goode, Linking Drop in Crime to Rise in Abortion, N.Y. Times, Aug. 20, 1999, at A14 (discussing the study).
78. This point is an organizing theme of Eisgruber, supra note 29.
79. McClain and Fleming rightly complain that "some [civil society] revivalists seem to engage in selective retrieval [of historical details], evidently assuming that th[e] history of exclusive practices] was an unfortunate element . . . that can be easily removed . . . and they fail to consider whether such a history seriously undermines the very notion of a more virtuous past." McClain & Fleming, supra note 47, at 338-39. See also Dorothy E. Roberts, The Moral Exclusivity of the New Civil Society, 75 Chi.- Kent L. Rev. 555, 556 (2000) (discussing how civil society revivalists have "a conception of civil society more concerned with rescuing a disappearing way of life than with ending persistent economic and social disparities").
80. McClain and Fleming rightly complain that "some [civil society] revivalists seem to engage in selective retrieval [of historical details], evidently assuming that th[e] history of exclusive practices] was an unfortunate element . . . that can be easily removed . . . and they fail to consider whether such a history seriously undermines the very notion of a more virtuous past." McClain & Fleming, supra note 47, at 338-39. See also Dorothy E. Roberts, The Moral Exclusivity of the New Civil Society, 75 Chi.-Kent L. Rev. 555, 556 (2000) (discussing how civil society revivalists have "a conception of civil society more concerned with rescuing a disappearing way of life than with ending persistent economic and social disparities").