The Constitution of Civic Virtue for a Good Society the Constitution, Civic Virtue, and Civil Society: Social Capital as Substantive Morality

Fordham Law Review

Volumn 69, Issue 5, 2001, Pages 1573-1592

  Macedo, Stephen ^a  

^a NONE

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EID: 0346491836     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (66)

1. See Sheri Berman, Civil Society and the Collapse of the Weimar Republic, 49 World Pol. 401 (1997) (noting that participation in associations, combined with a weak central government, led to a breakdown in German society). See also the excellent critical discussion of the ambiguity of "civil society revivalism" in Linda C. McClain & James E. Fleming, Some Questions for Civil Society Revivalists, Symposium on Legal and Constitutional Implications of the Calls to Revive Civil Society, 75 Chi.-Kent L. Rev. 301 (2000).
2. See Sheri Berman, Civil Society and the Collapse of the Weimar Republic, 49 World Pol. 401 (1997) (noting that participation in associations, combined with a weak central government, led to a breakdown in German society). See also the excellent critical discussion of the ambiguity of "civil society revivalism" in Linda C. McClain & James E. Fleming, Some Questions for Civil Society Revivalists, Symposium on Legal and Constitutional Implications of the Calls to Revive Civil Society, 75 Chi.-Kent L. Rev. 301 (2000).
3. As of 1992, there were 1.4 million non-profit associations in the United States. In 1990, non-profit associations earned a total estimated income of $316 billion. The non-profit sector employs 11% of the American workforce, or 16 million people. This sector includes a majority of American hospitals, and a substantial portion of our nursing homes and educational institutions, as well as the bulk of social service delivery. Non-profit organizations are deeply dependent on government funding, which comprises 31% of the sector's total income. Religiously-based institutions compose a substantial portion of the non-profit social service sector. Consider the striking fact that government funding accounts for 75% of the annual budget of the Roman Catholic Archdiocese of New York: $1.75 billion. Nearly $200 million a year goes to Catholic Relief Services from various government contracts and grants. Prominent Catholic, Jewish, and Protestant groups receive large portions of their revenues from government sources. See Stephen V. Monsma, When Sacred and Secular Mix: Religious Non-profit Organizations and Public Money 3-4, 10 (1996). Stephen Bates reports similar findings for non-sectarian charities: 60% of the revenues for "Save the Children" are government provided, 78% for CARE, and 80% for the United Cerebral Palsy Association. Stephen Bates, National Service: Getting Things Done?, A Cantigny Conference Series Special Report 45 (1996).
4. As of 1992, there were 1.4 million non-profit associations in the United States. In 1990, non-profit associations earned a total estimated income of $316 billion. The non-profit sector employs 11% of the American workforce, or 16 million people. This sector includes a majority of American hospitals, and a substantial portion of our nursing homes and educational institutions, as well as the bulk of social service delivery. Non-profit organizations are deeply dependent on government funding, which comprises 31% of the sector's total income. Religiously-based institutions compose a substantial portion of the non-profit social service sector. Consider the striking fact that government funding accounts for 75% of the annual budget of the Roman Catholic Archdiocese of New York: $1.75 billion. Nearly $200 million a year goes to Catholic Relief Services from various government contracts and grants. Prominent Catholic, Jewish, and Protestant groups receive large portions of their revenues from government sources. See Stephen V. Monsma, When Sacred and Secular Mix: Religious Non-profit Organizations and Public Money 3-4, 10 (1996). Stephen Bates reports similar findings for non-sectarian charities: 60% of the revenues for "Save the Children" are government provided, 78% for CARE, and 80% for the United Cerebral Palsy Association. Stephen Bates, National Service: Getting Things Done?, A Cantigny Conference Series Special Report 45 (1996).
5. According to Charles L. Glenn, the "Charitable Choice provision requires that, if states choose to contract for social services with federal welfare funds, they must allow faith-based organizations to compete on equal terms and may not impose conditions that affect their religious practices." Charles L. Glenn, The Ambiguous Embrace: Government and Faith-Based Schools and Social Agencies 8 (2000). The provisions of Charitable Choice, however, are fairly complex: it mandates that religious institutions must be allowed to maintain a religious environment by displaying religious symbols, and they retain the right to use religious criteria in hiring, firing and disciplining employees, but they remain subject to other anti-discrimination laws. They may not discriminate against clients on the basis of religion, and they may not require beneficiaries to participate in any religious exercise. Federal contract funds may not be used to pay for worship services, sectarian instruction, or proselytization. Id. at 107-10.
6. See Monsma, supra note 2; Glenn, supra note 3.
7. Glenn, supra note 3, at 82-83.
8. I have addressed Monsma's version of some of these charges elsewhere in Stephen Macedo, Constituting Civil Society: School Vouchers, Religious NonProfit Organizations, and Liberal Public Values, 75 Chi.-Kent L. Rev. 417 (2000).
9. Robert D. Putnam, Making Democracy Work: Civic Traditions in Modern Italy 175-76 (1993) [hereinafter Putnam, Making Democracy Work].
10. Id. at 107-09.
11. Robert D. Putnam, Bowling Alone: The Collapse and Revival of American Community 409 (2000) (italics in original) [hereinafter Putnam, Bowling Alone].
12. Id. at 408.
13. Id. at 409 (emphasis omitted).
14. Id. at 19.
15. Putnam, Making Democracy Work, supra note 7, at 170-73. For some important observations on these matters, see Philip Pettit, The Cunning of Trust, 24 Phil. & Pub. Aff. 202, 202-25 (1995).
16. Putnam, Making Democracy Work, supra note 7, at 170-73. For some important observations on these matters, see Philip Pettit, The Cunning of Trust, 24 Phil. & Pub. Aff. 202, 202-25 (1995).
17. Putnam, Bowling Alone, supra note 9, at 288-90.
18. I have explored some of these sources in Stephen Macedo, Community, Diversity, and Civic Education: Toward a Liberal Political Science of Group Life, 13 Soc. Phil. & Pol'y, 240 (1996).
19. Putnam, Bowling Alone, supra note 9, at 31-47, 336-49.
20. Id. at 48-64 (discussing trends of civic participation in the twentieth century).
21. Id. at 93-115.
22. Id. at 116-33.
23. Id. at 142-44.
24. Id. at 277-84.
25. Id. at 326-35.
26. Id. at 287-95.
27. Putnam, Making Democracy Work, supra note 7, at 86-98.
28. Id. at 175.
29. Id. (quoting Mark S. Granovetter, The Strength of Weak Ties, 78 Am. J. Soc., 1360, 1376 (1973)).
30. Putnam, Bowling Alone, supra note 9, at 22.
31. Id.
32. Id.
33. Id. at 23.
34. Id.
35. Id. at 20-22 (emphasizing generalized reciprocity); Putnam, Making Democracy Work, supra note 7, at 182-83 (same).
36. Putnam, Making Democracy Work, supra note 7, at 111.
37. Michael Sandel, Liberalism and the Limits of Justice (1982).
38. I argue for the centrality of multiple commitments and critical distance on one's commitments, by way of responding to communitarian and civic republican critics of liberalism, in Liberal Virtues: Citizenship, Virtue, and Community in Liberal Constitutionalism (1990).
39. Putnam, Making Democracy Work, supra note 7, at 107-09.
40. Id. at 127.
41. Id. at 173.
42. Putnam, Bowling Alone, supra note 9, at 77.
43. Id. (quoting Wade Clark Roof, America's Voluntary Establishment: Mainline Religion in Transition, in Religion and America: Spiritual Life in a Secular Age 132, 134 (Mary Douglas & Steven Tipton eds., 1983).
44. Id. at 77-79.
45. Id. at 78.
46. Id.
47. Id. at 77.
48. Glenn, supra note 3, at 82 (quoting Richard A. Baer, Jr., The Supreme Court's Discriminatory Use of the Term "Sectarian," 6 J. L. & Pol. 449, 449-51 (1990)).
49. Id. (italics in original).
50. Id. (quoting Baer, supra note 45, at 453 (omission in original)).
51. Id. (quoting Baer, supra note 45, at 459 (italics in original)).
52. In one way, of course, Putnam's argument represents a proposed alliance of democratic theory and religion. It was not so long ago that John Dewey argued that all traditional religions-by which he seemed to mean all religious communities that include a belief in a transcendent being and otherworldly rewards-were at odds with democracy's "common faith." See John Dewey, A Common Faith (1934). Dewey's core concern was that any religious group that focuses human attention on otherworldly or transcendent rewards would draw energies away from the project of social reform in the here and now. The thrust of Putnam's claim is that irrespective of the ultimate or transcendent motives for participating in religious communities, many churches are agencies that promote rather than detract from wider involvements in the democratic community and the project of social reform.
53. For the Ohio voucher litigation, see Simmons-Harris v. Zelman, 72 F. Supp. 2d 834 (N.D. Ohio 1999) and Simmons-Harris v. Zelman, 54 F. Supp. 2d 725 (N.D. Ohio 1999); Simmons-Harris v. Goff, 711 N.E.2d 203 (Ohio 1999). For the Wisconsin litigation, see Jackson v. Benson, 570 N.W.2d 407 (Wis. Ct. App. 1997).
54. See the stimulating critical commentary by Joe Loconte, Paying the Piper: Will Vouchers Undermine the Mission of Religious Schools?, Pol'y Rev., Jan.-Feb. 1999, at 30, 34.
55. See id. (discussing the situation in Milwaukee).
56. See Glenn, supra note 3, at 107-10.
57. Id. at 62-63.
58. Id. at 68.
59. Id.
60. Id.
61. Id. at 69.
62. Michael McConnell seems to call for such a form of neutrality as the baseline for measuring the legitimate effects of public policies on religious communities. Michael W. McConnell, Religious Freedom at a Crossroads, 59 U. Chi. L. Rev. 115, 169 (1992). John Tomasi also seems to want to argue for such a guarantee as a basic requirement of "political liberalism" as he understands it. See John Tomasi, Liberalism Beyond Justice: Citizens, Society, and the Boundaries of Political Theory (2001).
63. Michael McConnell seems to call for such a form of neutrality as the baseline for measuring the legitimate effects of public policies on religious communities. Michael W. McConnell, Religious Freedom at a Crossroads, 59 U. Chi. L. Rev. 115, 169 (1992). John Tomasi also seems to want to argue for such a guarantee as a basic requirement of "political liberalism" as he understands it. See John Tomasi, Liberalism Beyond Justice: Citizens, Society, and the Boundaries of Political Theory (2001).
64. See Stephen Macedo, Diversity and Distrust: Civic Education in a Multicultural Democracy (2000);
65. Stephen Macedo, Transformative Constitutionalism and the Case of Religion: Defending the Moderate Hegemony of Liberalism, 26 Pol. Theory 56 (1998) (containing a critical comment by Richard Flathman and a reply by the author).
66. Sorting out the empirical evidence for the greater effectiveness of private non-profit service delivery will, of course, be no easier than in the vexing area of schooling, where researchers have been trying to measure for decades how and why Catholic schools, for example, may perform better than public schools for some children.